Hand-book of the law of torts

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1

I

HAND-BOOK

OF THE

LAW OF TORTS

BY

EDWIN A. JAGPARD. A. M.. LL. B.

Professor of the Law of Torts Ifithe Law School of the University of Minnesota

IN TWO VOLUMES

VOL. II

St. Paul, Minn.

WEST PUBLISHING CO.

1895

LIBRARY OF THE
LELAHID STANFORD JR. UNtVERSIJf.

COPTRIGHT, 1895,
UY

IV EST PUBLISHING COMPANY.

t • •

TABLE OF CONTENTS

VOL. II.

Part II.
SPECIFIC WRONGS.

(CONTINUED).

CHAPTEB X.

WRONGS TO POSSESSION AND PROPERTY.

Section Page

208. Duty to Respect Property and Possession— Remedies 653-G57

209. Nature of Possession 657-058

210. Objects of Possession 658-600

211. Trespass— Definition 660-663

212-214. Possession to Maintain 663-673

215-216. Defenses 673-600

217. Remedies 690-605

218. Waste— Definition 695-696

219-222. Kinds of Waste 697-703

223. Remedies 703-706

224. Conversion— Definition 706-710

225. Title to Maintain 710-716

226-229. The Unauthorized Act 716-730

230. Parties 731-736

23L Remedies 737-743

CHAPTEB XI*

NUISANCE.

•

232. Definition 744-748

233. Rights Invaded 748-767

234-238. The Annoyance or Interference 708-781

239. Kinds of Nuisances 782

240. Public, Private, and Mixed 782-788

241. Continuing 788

242. Legalized 788-793

243-244. Parties to Proceedings against 793-798

245. Remedies 799-809

T.^— LAW OP TORTS (ill)

IV

TABLE OF CONTENTS.

Section
^ 246.

247.

248.
N 249.

250.

250a.

251.

252.

253.
254-258.
259-262.

263.
264-268.

260.

270.
271-274.

275.
276-278.

CHAPTER XIL

NEGLIGENCE.

Pape

Essential Elements 810-815

Care-Degrees 810-820

Mental Element 820-825

Duty 825-826

Common-Law Duties 826

Course and Constitution of Nature 827-832

Use of One's Own— Insurance of Safety 832-867

Knowledge of Danger 807-871

Capacity and Class of Parties to Wrong 871-875

Custom and License 875-897

Contract Duties 897-918

Statutory Duties 918-930

VIolaUon of Duty 931-958

Damages 959

Contributory Negligence 959-961

Elements of Contributory Negligouce 962-977

Comparative Negligence 978-979

Vicarious Negligence 980-989

CHAPTEB Xni.

MASTER AND SERVANT.

279. Master's Duties to Servant 990-1009

280. Master not an Insurer 1010-1013

281-282. Assumption of Risk by Servant 1013-1014

283. Ordinary Risks 1014-1019

284. Extraordinaiy Risks 1019-1020

285. Exceptions 1021-1029

286-287. Risk of Fellow Servants 1029-1037

288-289. Vice Principals 1037-1049

290-291. Concurrent Negligence of Master! 1050-1053

202. Statutory Provisions 1053-1056

CHAPTER XIV,

COMMON CARRIERS.

203. Who are Common Carriers 1057-1059

294. Carriers of Goods 1059-1006

TABLE OF CONTENTS. V

N»ciion Pafte

21)5. Duties 106G-1073

296. Carriers of Live Stoclc 1073-107G

297. Carriers of Baggage 1076-107S

298. Carriers of Passengers 1078-1094

TABLE OF CASES CITED.

(Vol. 2, pages 1095-1254.)

INDEX.

(Vol. 2, pages 1255-1307.)
f

HAND-BOOK

OF THE

LAW OF TORTS.

VOLUME 2

LAW or TORTS V.2. (G5.'a)

*n \*

CHAPTEB X.

WRONGS TO POSSESSION AND PROPERTY;

208. Duty to Respect Property and Possession— Remedies.

209. Nature of Possession.

210. Objects of Possession.

211. Trespass— Definition.
212-214. Possession to Maintain.
215-216. Defenses.

217. Remedies.

218. Waste— Definition.

219-222.

Kinds of Waste.

223.

Remedies.

224.

Conversion— -Defini I ion.

225.

Title to Maintain.

226-229.

The Unauthorized Act

230.

Parties.

231.

Remedies.

DUTY TO RESPECT PROPERTY AND POSSESSION-
REMEDIES.

208. The common la'w recognized an absolute duty to re-
spect the property of others, but based its remedies
for the violation of such duties upon possession
rather than on o'wnership.

The duty of abstaining from interference with property and pos-
session is absolute, and the courts have gone to great length in rec-
ognizing corresponding absolute rights. That a disturbance of prop-
erty or possession was involuntary and by mistake is no defense, if
the physical act was voluntary. Therefore, where one person, in
mowing his own grass, mowed by mistake a little of his neighbor's,
which was growing alongside, he was held liable.* If, however, the act

1 Baseley v. Clarlcson, 3 Lev. 37; Blaen, etc., Co. v. McCulioh, 50 Md. 403.
Permission to trim plaintiff's trees, given defendant by a person liavin^ no
authority, does not excuse defendant's trespass in acting on sucli perinis^
sion, though he thought such person had authority. Hulin;; v. Ilendernon
(Pa. Sup.) 20 AtL 276. But see Webber v. Quaw, 40 Wis. 118, 40 N. W. 830.

LAW OF TORTS, V. 2 (653)

654 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

is involuntary, it is otherwise, '^f a man who is assaulted and in dan-
ger of his life run through the close of another without keeping in a
footpath, an action for trespass does not lie." * It is immaterial
whether the person trespassing is acting for his own benefit,' or in
good faith to benefit the true owner,* even if benefit result to the
owner.* Indeed, intention does not necessarily enter into tres-
pass or conversion. It is sufficient if the act is done without jus-
tifiable cause or purpose. Ordinarily, the only effect of intent is
upon damages.® Mistake or ignorance affords no excuse; for ex-
ample, where one buys an ox of another, and by mistake takes
away the wrong ox, he is liable.' On the same principle, a pur-
chase of property in good faith from a person having no title is no
defense.* Indeed, it has been said that probably one-half the cases
in which trespass de bonis asportatis is maintained arise from mere

« 9 Bac. Abr. "Trespass," F. So, where cattle join a herd driven along the
highway, the driver, if innocent, is not liable for convereion. Young v.
Vaughn, 1 Iloust. 331; Brooks v. Olmstead, 17 Pa. St 24. A horse which
becomes frightened, and escapes from the owner, is not **i'unuing at large,"
within the meaning of an ordinance prohibiting animals from running at
large. PresnaU v. Raley (Tex. Civ. App.) 27 S. W. 200. Rightmire v. Shep-
ard, 59 Hun, G20, 12 N. Y. Supp. 800.

s Hollins V. Fowler, 44 Law J. Q. B. 1G9.

* Trespass, Kirk v. Gregory, 1 Exch. Div. 55; trover, Hiort v. Bott, 9 L.
U. Exch. 5C.

» Where defendant filled in plaintiffs' lot without their consent, and there-
by destroyed their fence and certain vegetables, plaintiffs are entitled to
recover any actual damages they suffered by reason of defendant's tres-
pass, and any advantage to the lot arising by reason of such filling In Is
not to be considered in estimating plaintiffs' damages. Hurley v. Jones
(Pa. Sup.) 30 Atl. 499.

e Weaver v. Ward. Hob. 134; Tobin v. Deal, 60 Wis. 87, 18 N. W. 634;
Wakeman v. Robinson, 1 Bln>?. 213; Jennings v. Fuudeburg, 4 McCord, 161;
Stephenson v. Brown, 147 Pa. St. 300, 23 Atl. 443; Wallard v. Worthman,
84 111. 446; Flanders v. Colbj', 28 N. H. 34; Cate v. Gate, 44 N. H. 211; Amiok
V. O'Hara, 6 Blackf. 258; Mairs v. Manhattan, etc., Co., 89 N. Y. 498; Bruch
V. Carter, 34 N. J. Law, 554; Maye v. Yappen, 23 Cal. 300; Hobart v. Hag-
get. 12 Me. 67; Luttrell v. Hazen, 3 Sneed (Tenn.) 20; ante, p. 391, **Ex-
umplary Damages."

7 Hobart v. Hagget, 12 Me. 67. Et vide Wallard v. Worthman, 84 111. 446.

« As to timber, see Loewenborg v. Rosenthal, 18 Or. 178, 22 Pac. 601; Hig-
^nson V. York, 5 Mass. 341 ; Allison v. Little, 85 Ala. 512, 5 South. 221. Et
Tide Cundy v. Lindsay, L. R. 3 App. Gas. 459; Smith v. Webster, 23 Mich.

Oh. 10] DUTY TO RESPECT PROPERTY AND POSSESSION. 655

misapprehension of legal rights.* In trover and conversion, however,
it has been held that nnder certain circumstances intention may
become an essential of the legal wrong.^^ So, in nuisance, it is
not universally true that motive is immaterial.^ ^

Remedies.

The common law provided remedies for injuries to possession
and property, and based them upon possession rather than on the
right of the property. The action of detinue at common law lay
where a party claimed the specific recovery of goods and chattels,
or deeds and writings detained from him.** For the same pur-
pose, however, trover, one of the actions on the case not requiring
the exactness of description necessary for detinue, came into more
general use. It claims damages, and is based on the innocent
fiction that the defendant, having found the goods, converted them
to his own use.*' Replevin could only be brought where there had
been a taking by trespass, whether under color of legal process or
otherwise.** Trespass, in its largest and most extensive sense,
signifies any transgi*ession or offense against the laws of nature,
of society, or of the country in which we live, whether it relates

2ft8; PUcher v. Rawlins, L. R. 7 Oh. App. Oas. 259; Hazelton v. Week, 49
Wis. 661, 6 N. W. 309.
» Stanley v. Gaylord, 1 Cush. 536-551, per Metcalf , J.

10 Post, p. 706, "Conversion."

11 Post, p. 744, "Nuisance."

12 Steph. PI. 16. Et vide Robinson v. Richards. 45 Ala. 354; Caldwell v.
Fenwlck, 2 Dana, 332; Jennings v. Gibson, 1 Miss. 234. Where a foreign
corporation, which has failed to comply with the requirements made a con-
dition precedent to its right to do business in the state of Alabama, makes
a conditional sale of a chattel therein, the contract is void, and, as the legal
title consequently never passes out of the seller, it may maintain detinue
for the chattel. Boulden v. Estey Organ Co., 92 Ala. 181, 9 South. 283.

18 Steph. PI. 19. Et vide Burroughes v. Bayne, 5 Hen. & M. 296; PiUot
V. Wilkinson, 2 Hurl. & C. 72; Grand Island Banking Co. v. First Nat Bank,
34 Neb. 93, 51 N. W. 596; Lucas v. Pittman, 94 Ala. 61G, 10 South. 603; Rey-
nolds V. Horton, 2 Wash. St. 185, 26 Pac. 221; Michigan Mut. Life Ins. Co.
V. Cronk, 93 Mich. 49, 52 N. W. 1035; Toguini v. Kyle, 17 Neb. 209, 30 Pac.
829; Cain v. Cain (Sup.) 20 N. Y. Supp. 45. Moreover, trover being allied to
trespass, could not be defeated by wager of law.

1* Clerk & L. Torts, 186, collecting cases. And see Mennie v. Blake, 6 El.
& BL 842; Mellor v. Leather, 1 El. & Bl. 619.

656 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

to a man's person or his property.** Trespass was used at common
law as the name of an action where the injury to the person or prop-
erty was direct, as trespass vi et armis, for assault and battery or
for false imprisonment. Ejectment was a species of personal ac-
tion of trespass for the recovery of both land and of damages for
detention of possession. Trespass on the case was an action arising
from the statute of Westminster n., and lay for consequential in-
juries.** Waste was a wrong *^ as well as a remedy.*® Trespass
for damages afforded a simple means for trying title to land. Its
use for this purpose has not entirely disappeared.**

"The forms of [common law] action," says Mr. Pollock,*^ "brought
not ownership, but possession, to the front, in accordance with a
habit of thought which, strange as it may now seem to us, found
the utmost difficulty in conceiving rights of property as having full
existence, or being capable of transfer and succession, unless in close
connection with the physical control of something which could be
passed from hand to hand, or at least a part of it delivered in the
name of the whole. ♦ ♦ ♦ An owner who had neither possession
nor the immediate right to possession could redress himself by a
special action on the case, which did not acquire any technical name."

The protection which the law gives to possession seems to be an

18 3 Bl. Comm. 208.

leAnte. c. 1; Leame v. Bray, 3 East, 503; Cole v. Fisher, 11 Mass. 137;
Berry v. Ha mill, 12 Serg. & R. 210; Case v. Mark, 2 Ohio, 169. As to aboli-
tion of distinction between trespass and case, vide Duffleld v. Rosenzweig,
144 Pa. St. 520, 23 Atl. 4; Welch v. Whittemore, 25 Me. 86; Coe v. English.
6 Houst. (Del.) 456; Wright v. Wilcox, 39 Wend. 343; Luttrell v. Hazen, 3
Sneed (Tenn.) 20; Sohultz v. Franlt, 1 Wis. 352; Guilford v. Kendall, 42

Ala. 651.

17 The common-law action for waste might have been assumpsit (1 Chit.
102, 141), or covenant (Id. 141), or case (Id. 140).

18 St. Glouc. 6 Edw. I., c. 5.

19 Klrcher v. Murray, 8 C. C. A. 448, 60 Fed. 48-52; Cox v. Hart, 145 U.
S. 376, 12 Sup. Ct. 962; Downing v. Diaz, 80 Tex. 436, 16 S. W. 49; Stephen-
son V. Wilson, 37 Wis. 482. In Kentucky, however, in an action of trespass,
the jury has no power to establish by its verdict a disputed line between
the lands of the parties. Seale v. Sliepherd (Ky.) 29 S. W. 31.

20 Pol. Torts, 416. Et vide Lambert v. Stroother, Willes. 218; Dixon v.
^^^lite sewing Mach. Co., 128 Pa. St 397-405, 18 Atl. 502.

Ch. 10] NATURE OF POSSESSION. 657

extension of the protection it affords to the person.** The inviola-
bility of the person extends to those sorts of disturbances by which
the person might at the same time be interfered with.** In other
words, the explanation of protection is to be found in the paramount
necessity of preventing a breach of the peace.**

NATUBE OF POSSESSION.

209. Possession, in its legal sense, is the present enjoy-
ment or right of enjoyment of definite property by
a person with a purpose to exercise such property
for the benefit of the holder, or facts from which
such purpose could be assumed if the mind were
directed to the object of possession.^

Simple as it would seem to be^ the idea of possession as the basis
of an action for trespass is by no means clear.* '^

The enjoyment may consist in the contact, the detention, or con-
trol of the property; or it may arise from the right to reduce the
property to physical control at the time, and the absence of any
opposition to the exercise of that right. Mere temporary physical
control does not necessarily constitute possession in its legal sense.
There must be "something like acquiescence'' in the physical fact
of occupation on the part of the rightful owner.** Possession of
lands which is merely incidental and subsidiary to the commission
of a trespass thereon, as by cutting and removing the timber which

«i Lord Denman, in Rogers v. Spence, 13 Mees. & W. 571.

32 1 Say. Pos. S 6. The taking of a chattel out of a man's possession Is
an assault cm his person. Powell, J., In Green y. Goddard, 2 Salk. 641.

28 Clerk & L. Torts, 243.

a* Clerk & L. Torts, 240; Bigelow, Torts, 183; London & County Banking Co.
y. Ix>ndon & River Plate Bank, 21 Q. B. Dly. 535-542; Reglna v. Ash well, 10
Q. B. Div. 100.

23 Essay on "Possession in Common Law," by Sir Frederick Pollock and Mr.
Justice Wright. And see Holmes, Com. Law (9th Ed.) p. 244, lect. 6.

26 Pol. Torts, 468. "A m^e trespasser cannot, by the very act of trespass,
immediately and without acquiescence give himself what the law understand.s
by possession against the person whom he ejects, and drive him to produce his
title, if he can without delay reinstate himself in his former possession."
Browne y. Dawson, 12 Add. & B. 624-629; Ex parte Fletcher, 5 Ch. Div. 809-

LAW OF TOKTS— 42

658 WRONGS TO POSSESSION AND PROPEBTY. [Ch. 10

is abandoned when that object is accomplished, is not legal posses-
sion.'^ Again, mere occupation or control by a servant or tenant
at will does not seem to be legal possession.** Possession may be
based on title or on bare physical occupancy or prehension without
title. It may, accordingly, be actual or constructive.** It may also
be subordinate or peimissive, as that of a tenant under his landlord.
The question of possession is one of fact for the jury.**

OBJECTS OF POSSESSION.

210. Possession entatling one to the common-law actions
ex delicto may concern —

(a) Personal or real property;

(b) The appropriated or unappropriated benefits of na-

ture.

Real and Personal Propeiiy,

As to personal property, the right to assume physical possession,
it will hereafter be shown, is always sufficient. But, as to real prop-

812; Holmes v. Wilson, 10 Adol. & E. 503; Bowyer v. Cook, 4 C. B. 236;
Hughes V. Stevens, 3C Pa. St 320; Ozark Land Co. v. Leonard, 20 Fed. 881;
Ware v. Johnson, 55 Mo. 500; Illinois & St L. Railroad & Coal Co. v. Cobb,
82 111. 183; Pettit v. Cowherd, 83 Va. 20, 1 S. E. 393; Storrs v. Feick, 24 W.
Va. 606; Gulledge v. White, 73 Tex. 498, 11 S. W. 527.

27 Austin V. Holt 32 Wis. 478. "Going upon land from time to time, and cut-
ting logs thereon, does not give possession. Such acts are merely trespasses
upon the land against the true owner, whoever he may be. • ♦ ♦ But it was
never supposed that the hunter had possession of the forest through which he
roamed in pursuit of game." Thompson v. Burhans, 79 N. Y. 93. Generally
occasional intinisions do not constitute possession, whether done under claim
of title or not.

2 8 Hughes V. Stevens, 36 Pa. St 320; Ozark Land Co. v. Leonard, 20 Fed.
881; Ware v. Johnson, 55 Mo. 500; Illinois & St L. Railroad & Coal Co. v.
Cobb, 82 111. 183; Pettit v. Cowherd, 83 Va. 20, 1 S. E. 392; Storrs v. Felck,
24 W. Va. 606; Gulledge v. White, 73 Tex. 408, 11 S. W. 527.

20 The term "constructive possession," while, as used, often confused with
"actual possession," serves a useful purpose, as meaning the right to take pos-
session. The distinction is too flnnly Imbedded in the body of decisions to be
disregarded.

30 llulse V. Brantley, 110 X. C. 134, 14 S. E. 510; Firth v. Veeder, 58 Hun,
605, 12 N. Y. Supp. 579; Kinney v. Ferguson. 101 Mich. 178, 59 N. W. 401.

Ch. 10] OBJECTS OF POSSESSION. 659

erty, the right to possession is not sufficient to maintain trespass
when some other person is in actual possession. Injuries to real
proi>erty may be either to land or to easements (or rights in the na-
ture of easements), such as rights of way, water rights, rights to
support of land and buildings, ancient lights, and the like. Injuries
to such incorporeal hereditaments give rise to causes of action, both
in trespass and nuisance. It will be convenient to postpone their
chief discussion until trespass is explained and nuisance comes un-
der consideration.

Tilings Ferss NatursR.

As to things ferae naturae,** the act of reducing them to possession
is essential to create title sufficient to maintain the common-law
possessory remedies. '^Property ratione soli is the common right
which every owner of land has to take and kill all such animals ferae
naturae as may from time to time be found on his land; and, as
soon as this right is exercised, the animal so killed or caught be-
comes the absolute prpperty of the owner of the soil." •* Thufe no
one, before actual reduction into possession, can have a right in
creatures, as fish in the sea, which are open to the pursuit of all.*'
But the act of reducing animals ferae naturae to possession must not
be wrongful, and, if it is effected by one who is at the moment a
trespasser, no title to property is created. This principle has been

SI As to what are feroe naturae, see 1 Broom & H. Co mm. (Wait's Ed.) 799.
Doves: Com. v. Chace, 9 Pick. 15. A fox: Pierson v. Post, 3 Caines, 175. A
hare: Sutton v. Moody, 1 Ld. Raym. 250. A buffalo: Ulery v. Jones, 81 111.
403. Wild geese: Amory v. Flyn, 10 Johns. 102. Property in monkeys and
parrots: Grymes v. Shack, Cro. Jac. 262.

»2 Blades v. Higgs, 11 H. L. Cas. 021. Cf. Rlgg v. Earl of Lonsdale, 1 Hurl.
& N. 923. No property is acquired where an animal ferae naturse is wounded
and followed by dogs if the owner abandons the chase. Buster v. Newkirk,
20 Johns. 73. Fhiding and marking bee trees do not confer title sufficient
to sustain trespass: Goff v. Kitts, 15 Wend. 550; Ferguson v. Miller, 1 Cow.
243; Gillet v. Mason, 7 Johns. 10; Fisher v. Steward, Smith (N. H.) GO, and
note. Et vide Olmstead v. Rich, 53 Hun, 038, 6 N. Y. Supp. 826.

83 Young V. Hichens, 6 Q. B. 606; Stevens v. Jeacocke, 11 Q. B. 731. Cf.
Marsh v. Colby, 39 Mich. 626; McCarthy v. Holman, 22 Hun, 53; Paul v.
Hazelton, 37 N. J. Law, 100. Oysters planted in navigable river are not such
property as will sustain trespass against owner of adjacent land for taking
them away. Brinckerhoff v. Starkins, 11 Barb. 248. Cf. Arnold v. Muudy, G
N. J. Law, 1; 1 Am. Law. Reg. (N. S.) 579, 580.

660 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

applied where the plaintiff, without the permiBsion of the owner,
put an empty box for bees to hide in on the latter's land, and a third
person took out the swarm of bees, and replaced the box. The court
denied the plaintiff's right to recover in trover for the value of the
bees, the honey, and the honeycomb.**

TBESPASS—DBPINITION.

211. Trespass is the wrongful disturbance of another's
possession of lands or goods. The disturbance may
consist of physical entry on lands, or seizure of
goods, or of any other exercise of ownership or
control over them inconsistent with the owner's
possession.

An unauthorized entry of another's lands was a trespass for which
at common law an action quare clausum fregit lay. Forcible dis-
turbance of peaceable possession is a trespass.'* If a man's land
is not surrounded by any actual fence, the law encircles it with an
imaginary inclosure, to pass which is to break and enter his close.**
Actual and malicious exercise of force is sufficient.*^ But force as
an essential element of disturbance may not be violence; nor need
it be actual force, in the popular sense of the term; it may be im-
plied.*® The mere walking over a place whereon is neither grass
nor herbage is sufficient,^® and so, in general, is any unauthorized

34 Rexroth v. Coon, 15 R. I. 35, 23 Atl. 37.

»B Dolahauty v. Lucey, 101 Mich. 113, 59 N. W. 415.

»• Add. Torts, 360. Wrongful entry is the gist of the action. HiU v. Bar-
tholomew, 71 Hun, 453, 24 N. Y. Supp. 944. As to crossing boundaries: Os-
walt v. Smith, 97 Ala. G27, 12 South. 004; Pace v. Potter (Tex. Civ. App.) 20 S.
W. 928, revei-sed 85 Tex. 473, 22 S. W. 300.

»T American Union Tel. Co. v. Middleton, 80 N. Y. 408. Forcible disturbance
of peaceable possession is a trespass, and an action therefor involves no ques-
tion of title. Dolahanty v. Lucey, 101 Mich. 113, 59 N. W. 415.

88 Green v. Goddard, 2 Salic. 641; Meriwether v. Asbeck (Tex. Civ. App.) 25
S. W. 1100; Weaver v. Bush, 8 Term R. 78; Co. Litt. 256, B; Id. 162, A;
Hatch V. Donnell, 74 Me. 163, Chase, Lead. Cas. 150; Van Leuven v. Lyke,
1 N. Y. 515, Chase, I^ad. Cas. 152.

99 Kntick V. Carriugton-, 19 State Tt. 1030-1066; Doughei-ty v. Stepp, 1 Der.

Ch. 10] TRESPASS. 661

intrusion.*® So to drive nails into a wall or to place stones and rub-
bish against it may amount to trespass.*^ The disturbance, how-
ever, is not necessarily confined to the surface of the land. Inter-
ference with minerals** beneath the surface, and perhaps inter-
ference with the column of air above the surface, may constitute
trespass.*' A mere nonfeasance is not sufficient, as neglect to re-
pair banks whereby another's land is overflowed.** Similarly, to en-
title the owner or possessor of personal property to bring trespass
de bonis asportatis, he can show a forcible taking of goods; but this
is not necessary. **No actual force need to be proved. He who in-
terferes with my goods, and without my consent undertakes to dis-
pose of them as having the property, general or special, does it at
his peril to answer me the value in trespass or trover." *•* Manual

& B. 371; McCall's Adm'r v. Capehart, 20 Ala. 521; Newson v. Anderson, 2
Ired. 42.

40 Dougherty v. Stepp, 1 Dev. & B. 371. Nailing a board on one's own prem-
ises, as to overhang neighbor's premises, is a trespass. Cf. Pickering v. Uiidd.
4 Gamp. 219, 220, with Pinchin v. London & B. Ry. Ck)., 1 Kay & J. 34; Loland
7. Hathorn, 42 N. Y. 547; Smith v. Smith, 110 Mass. 302. Projecting of win-
dow siUs; Richardson v. Pond, 15 Gray, 387-390; (J. S. v. Applet on, 1 Siunn.
(U. S.) 492-600, Fed. Cas. No. 14,463; Story v. Odin, 12 Mass. 157, 7 Am. Dec.
49, note.

*i Lawrence v. Obee, 1 Starkie, 22; Gregory v. Piper, 9 Bam. & C. 591.
Or a sign: Devlin v. Snellenburg, 132 Pa. St. 186, 18 Atl. 1119. Use of
gas after arrearage In payment is not. Alexandria Mining & Exploring Co.
V. Painter. 1 Ind. App. 587, 28 N. E. 113.

*a Parker, B.. in Smith v. Lloyd, 9 Exch. 562; Ashton v. Stock, G Ch. Div. IXiK

43 Firing bullets into another man's land has been held sufficient Pickering
V. Rndd, 1 Starkie, 56. But see Kenyon v. Hart, 6 Best & S. 249; Wadswortlj-
Board of Works v. United Tel. Co.. 13 Q. B. Div. 904-907. So, perhaps, man
firing over another's field. Clifton v. Bury. 4 Times, Law R. 8. As to balloon:
GnUle V. Swan,. 19 Johns, 381; PoL Torts, 34. As to blasting: Hunter v.
Farren, 127 Mass. 481.

44 Brooke, Abr. Sur le C. PI. 36; Hinks v. Hlnks, 46 Me. 423; Turner v.
Hawkins, 1 Bob. & P. 472; Shapcott v. Mugford. 1 Ld. Raym. 187.

45Sewall, J., in Gibbs v. Chase, 10 Mass. 125; Miller v. Baker, 1 Mete.
(Mass.) 27; Morgan v. Varlck, 8 Wend. 587; Dexter v. Cole, 6 Wis. 319;
Reynolds v. Shuler, 5 Cow. 323. The removal of a chattel from one town
to another entitles to nominal damages, when done without authority. Pol-
lock, C. B., in Reg. v. Riley, Dears. Crown Cas. 157; Kirk v. Gregory, 1 Exch.
Div. 55.

662 WKOXGS TO POSSESS lOX AND PROPERTY. [Ch. 10

taking or removal is not necessary, although sufficient.** The two
causes of action, trespass quare clausum fregit and de bonis as-
portatis, may be united in one proceeding; as where defendant was
sued in one action for breaking into a dwelling house and carrying
away goods.* ^

To show a disturbance of possession, it is not necessary to prove
actual damages; *® every invasion of propei*ty, be it ever so minute,
constitutes a trespass.** The gist of the action is disturbance of
possession. Other averments as to the manner in which the tres-
pass was committed relate to damages only*"" This is for the same
reason which renders it unnecessary to prove actual damages in as-
sault and battery. This is a breach of absolute duty, for which
damages are awarded to prevent a breach of the peace/^

The disturbance may be committed by the defendant himself,**
or by animals (even though the owner had no knowledge of their

-»« Holmes v. Doane, 3 Gray, 328. "Scratching the panel of a carriage would
be a trespass." Foiildes v. Willoughby, 8 Meee. & W. 540. Et vide Gay-
lard y. Morris, 3 Exch. G95. So, striking or killing an animal. Dand v. Sex-
ton, 3 Term R. 37; Wright v. Ramscot, 1 Saund. 83. A sheriff's levy dis-
turbs possession, so as to entitle to trespass, althougih there be no taking.
Welsh V. BeU, 32 Pa. St. 12; Wlntringham v. Lafoy, 7 Cow. 735; PhUllps
V. Hall, 8 Wend. 610. Et vide Dixon v. Sewing-Mach. Co., 128 Pa. St. 397.
18 Atl. 502; . Kitchen v. McCloskey, 150 Pa. St 376, 24 Atl. 688; Burgess v.
Graffam. 10 Fed. 210, 18 Fed. 251. But see Mennle v. Blake, 0 El. & Bl. 842.
As to what disturbance is sufficient to justify ti*espass by reversioner against
third person, or by one tenant against another, see post, pp. GGG-^JGS.

47 Eamos v. Prentice, 8 Cush. 337; Bishc^ v. Bak^, 19 Pick. 517. So, ties-
pass quare clausum fi-eglt and trespass vi et armis as for trespassing on free-
hold and injuring plaintiflTs wife. Bobbins v. Sawyer, 3 Gray, 375.

48 Williams v. Esling, 4 Pa. St. 480, Bigelow, I^ead. Cas. 371; Doughei'ty
V. SteppI 1 Dev. & B. 371; Murphy v. Fond do Lac, 23 Wis. 365; Parker v.
Griswold, 17 Conn. 288.

4» Entick V. Carrington, 19 State Tr. 1029-1066. Bt vide Tunbridge Wells
Dipper Case. 2 Wils. 414.

50 Taylor v. Cole, 3 Term R. 292; Whatling v. Nash, 41 Hun, 579; Curtis v.
Groat, 6 Johns. 168; Smith v. Ingram, 7 Ired. 175; Wendell v. Johnson, 8 N.
H. 222; Ferrin v. Symonds, 11 N. H. 363.

Bl Clerk & L. Torts. 207.

03 Hatch V. Donnell, 74 Me. 163, Chase, Lead. Cas. 50.

Ch. 10] TRESPASS. 663

vicious propensities),*' or by inanimate things.'* Every one aiding
or encouraging a trespass, as in destroying a liquor shop, is liable
in trespass; and mere presence, in connection with other circum-
stances, may be sufficient to attach liability as a principal.'*

SAME— POSSESSION TO MAINTAIN.

212. Only persons in actual or constructive possession of
lands or chattels at the time the wrong is com-
mitted can maintain trespass in reference thereto,
and such constructive possession is that of the
owner when no person is in actual possession.

«

To maintain trespass, it is absolutely necessary that the plaintiff
be in actual possession, or have the right to take possession at the

5« Van Leuven v. Lyke, 1 N. Y. 515, Chose, Lead. Cas. 152; Marsh v. Hand.
120 N. Y. 315, 24 N. E. 463. Compare Moynahan v. Wheeler, 117 N. Y. 285,
22 N. B. 702. Recent ESnglish cases on trespassing animals will be found dis-
cussed in 28 Ir. Law T. 406.

B4 Thus, if one throws stones and rubbish on another's land with intention
to cause stinking water in his yard to penetrate the walls of his neighbor's
house, and flow into his cellar, these are acts for which trespass will lie with-
out proof of actual damages. Preston v. Mercer, Hardr. 60. See Reynolds
y. Clarice, 2 Ld. Raym. 1399. But, if defendant unintentionally, as the re-
sult of the exercise of his own rights, as where his privy, allowed to be out
of repair, flows into his neighbor's cellar, he is liable in nuisance on proof of
damages,~-not in trespass. Tenant y. Goldwin, Id. 1089. In these cases, ac-
cordingly, the inattention of defendant determines whether or not trespass
will lie. Clerk & L. Torts,. 268. And see Gregory y. Piper, 9 Barn. & C. 591.
As to trespass by an engine, see Ambergate, etc.. Ry. Co. v. Midland Ry.
Co., 2 El. & Bl. 793.

5fi Brown y. Perkins, 1 AUen, 89. Kt yide Com. v. Hurley, 99 Mass. 433;
Gate y. Cate, 44 N. H. 211. As to liability of city, see Cayanagh v. City of
Boston. 139 Mass. 426, 1 N. K 834. Further, as to joint trespass, see Fields
V. Williams, 91 Ala. 502, 8 South. 808; Murray y. Mace, 41 Neb. 60, 59 N. W.
387; Thompson y. Albright (Tex. App.) 14 S. W. 1020; McFadden y. SchiU,
84 Tex. 77, 19 S. W. 368. An attorney who issues an execution, upon which
goods of a stranger are seized and sold, but took no part in seizure, is not lia-
ble to owner in trespass. Hammon v. Fisher, 2 Grant, Cas. 330. Cf. McDan-
iels y. Cutler, 3 Brewst (Pa.) 57.

6G4 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

time of trespass.** A person out of possession of land actually oc-
cupied by another cannot succeed in trespass until he has first ousted
the possessor and put himself into possession.*^ Nor can the owner
maintain trespass for taking personal property unless, at the time
of taking, he had possession or the right of taking actual posses-
sion.** If the house and land, however, be occupied, not by a ten-
ant who is not a tenant at will or lessee, but by a servant of the owner

»J Ward V. Taylor, 1 Pa. St. 238; Hersey v. Chapin, 162 Mass. 176, 38 N.
E. 442; Fitch v. New York, P. & B. R. Co., 59 Conn. 414, 20 Atl. 345. A
stranger to title of land cannot maintain trespass against a railroad company
for injuries by fires, land on which plaintiff intended to graze his cattle, with-
out owner's consent There was neither actual nor constructiye pofisession.
Texas & Pac. Ry. Co. v. Torrey (Tex. App.) 16 S. W. 547; Danihee v. Hy-
att, 59 Hun, 616, 12 N. Y. Supp. 465; Odd Fellows' Sav. Bank v. Turman
(Cal.) 30 Pac. 966; Fruitport Tp. v. Muskegon Circuit Judgie, 90 Mich. 29,
51 N. W. 109; Smith, Dam. 3(3, note 3, collecting cases; Zeitinger v. Hack-
worth, 117 Mo. 505, 23 S. W. 763. Plaintiff, having bought a strip of land
from defendant, an adjoining landowner, defendant ran it off, and erected a
building on the line. Afterwards, plaintiff claimed that the line so run was
incorrect, and that the true line was several inches within the line of the
building. It was held that plaintiff never had either actual or constructive
possession, so as to support an action of trespass quare dausum f regit Wil-
kinson V. Connell, 158 Pa. St. 126, 27 Atl. 870. An action of trespass on land
can only be maintained where the plaintiff had title or i>o3session at the time
of the acts complained of. Chicago, R. I. & P. Ry. Co. v. Shepherd, 39 Neb.
523, 58 N. W. 189, fallowed in Hanlon v. Union Pac. Ry. Co., 40 Neb. 52, 58 N.
W. 590.

07 Chicago & W. I. R. Co. v. Slee, 33 111. App. 420; Potter v. Lambie, 142
Pa. St. 535, 21 Atl. 888; Wood v. Michigan Air-Line R. Co., 90 Mich. 334, 51
N. W. 2Go. Where a widow and her son agree on a division of the land of
the deceased husband and father, and the sou takes possession of land al-
lotted to him In such division, she, not having given him notice to quit, can-
not maintain trespass against him, though a judgment was afterwards ren-
dered. Including It in her dower land. Norton v. Norton (Ky.) 27 S. W. 85.

08 Wilson V. Haley Live-Stock Co., 153 U. S. 39, 14 Sup. Ct 768 (trespass d.
b. a.); Ward v. Macauley, 4 Term R. 489; Staples v. Smith. 48 Me. 470; Put-
man V. Wyley, 8 Johns. 387; Freeman v. Rankius, 21 Me. 446; Clark v. Carlton,
1 N. H. 110; Codman v. Freeman, 3 Cush. 306. A mortgagee, having the right
to take possession, may maintain trespass against a stranger who unlawfully
interferes, before the debt falls due. Woodruff v. Halsey, 8 Pick. 333;
Foster t. Perkins, 42 Me. 168; Joseph v. Hendei-son, 95 Ala. 213. 10 South. 843.

Oh. 10] TRESPASS. 665

or a tenant at will,'^' the occupation of the servant or the tenant at
will is the occupation of the master or owner, and the latter may
therefore sue for any act of trespass. The same principle applies es-
pecially with respect to personal property. Under such circumstan-
ces, it is not necessary for the owner to reduce the property to pos-
session. Indeed, the tendency of the cases may be said to be to
recognize such possession as concurrent, and as entitling both per-
sons to maintain an action based on rights of possession.'®

As between Prrsnns in Speci/il Relations,

While a landlord ordinarily cannot sue in trespass his tenant who
is in possession,"^ the tenant may become a trespasser by willful

»• Curtis V. Galyin, 1 AHen. 215; Moore v. Mason, Id. 406; Meader v.
Stone, 7 Mete. (Mass.) 147; 2 Bl. Comm. 150; Jackson y. Parkhurst, 5 Johns.
128; Livingston v. Tanner, 14 N. Y. 64; Esty v. Baker, 50 Me. 325; Daniels
T. Pond, 21 Pick. 367.

•0 Knight V. Legh, 4 Bing. 689; Starr v. Jackson, 11 Mass. 519; Gunsolus
T. Lormer. 54 Wis. 630. 12 N. W. 62; Holman v. Herscher (Tex. Sup.) 16 S.
W. 984; Bertie v. Beaumont, 16 East, 33; May hew v. Suttle, 4 El. & Bl. 347;
White V. Bay ley. 10 C. B. (N. S.) 227; Lessee of Moore T. Doherty, 5 Ir. Law
H. 449. Where a chattel is tortiously taken from the actual or constructive
possession of the owner, he may bring trespass de bonis asportatis. The
owner is in constructive possession, though a bailee, at time of actual taking,
may have actual possession. Ely v. Ehle, 3 N. Y. 506, collecting cases, pages
597, 508. The owner still has constructive possession where the person
who has possession is his agent or servant. Becker v. Smith, 59 Pa. St. 469.
Also, replevin: Stadtfeld v. Henlsman, 92 Pa. St. 53; Staples v. Smith, 48
Me. 470; Harris v. Smith, 3 Serg. & R. 20; Hampton v. Brown, 13 Ired. 18.
But see Holmes, Lead. Cas. 220-228; Moore v. Robinson. 2 Bam. & Adol.
817. Mr. Bigelow has suggested that the reason why it was not necessarj'
for the owner of a chattel to reduce it to possession when actually in the
hands of another was that land, being i)erraanent, could be reduced to pos-
session at any time, while this might be often impossible as to personalty,
and that, damages being the object, substantial injustice might result from
any other rule as to personalty.

^^Chadboume v. Straw, 22 Me. 450; Briggs v. Thompson, 9 Pa. St. 338;
Ripley V. Yale, 16 Vt 257; Mueller v. Kuhn, 46 111. App. 496; Schaefer v.
SUverstein, Id. G08; post, p. 008. Trespass cannot be maintained against
the owner of premises having the right of possession for making an entry
thereon against the will of the tenant in possession after the lease had ter-
minated. Mueller v. Kuhn, 46 Hi. App. 496. A landlord may put out with
force a tenant holding under a lease containing a clause of re-entry for

666 WRONGS TO POSSESSION AND PROPERTY. [Oh. 10

wrong, and render himself liable to his landlord in trespass.** Tres-
pass cannot be maintained, against the owner of premises having
the right of possession, for making an entry thereon against the
will of the tenant in possession after the lease has terminated.*'
The owner may sue in trespass a tenant at will who is in actual
possession of the premises.** A landlord can maintain an action
of trespass for injiu'y to the freehold committed by a stranger while
his tenant is in possession of the land.** As between landlord and
tenant, or occupier and reversioner, a tenant in actual possession or
occupier, and not the landlord or reversioner, can maintain an ac-
tion, in the nature of trespass, for an act which is not an injury
to the reversioner.** Thus, the occupier, and not the reversioner,
can maintain an action against a stranger for merely entering upon
the land.*^ But where a window was obstructed by the erection of
a wall on the adjoining premises, it was held that the reversioner
was entitled to recover damages because the obstruction was of per-
manent character, and would remain unless something was done to
remedy the mischief.** The right of the mortgagor and mortgagee

covenant broken on the breach of such covenant Schaefer v. Silverstein,
46 lU. App. 608.

02 Rogei-s V. Brooks, 99 Ala. 31, 11 South. 753; Emry v. Roanoke Naviga-
tion & Water-Power Co., Ill N. C. 94, 16 S3. E. 18.

es MueUer v. Kuhn, 46 lU. App. 496. Of. Schaefer v. SUverstein, Id. 006.

«* Ripley V. Yale, 10 Vt. 257. The jurisdiction of law and equity being
amalgamated, the owner of an equity of redemption can sue for trespass to
the property, and injury to the freehold, though before action he has conveyed
his equity. Gwynne, J., dissenting, in Brookfield v. Brown, 22 Can. Sup. Ct
398.

es Bailey v. Siegel Gas Fixture Co., 54 Mo. App. 50; Miller v. Mutzabaugh, *
3 Pa. Dist. Ct. R. 449.

e6 Halligan v. Chicago & C. Ry. Co., 15 111. 558; Clark v. Smith, 25 Pa. St
137; Rogers v. Brooks, 99 Ala, 31, 11 South. 753; Baseom v. Dempsey, 143
Mass. 409, 9 N. E. 744; Mayo v. Springfield, 138 Mass. 70; Stoltz v. Kretseh-
mar, 24 Wis. 283; Cooper v. Crabtree, 20 Ch. Div. 589; Gunsolus v. Lormer,
TA Wis. 030, 12 N. W. 62; Holmes v. Seely, 19 Wend. 500. As to right of
possession of a lessee of a market stall, see Strickland v. Penn.sylvania R.
R., 154 Pa. St. 348, 26 Atl. 431; Vidalat v. City of New Orleans, 43 La. Ann.

1121. 10 South. 175.

67 Baxter v. Taylor, 4 Bam. & Adol. 72. Et vide Simpson v. Savage. 1 C.

B (N S ) 347.

68 Jesser v. Gifford, 4 Burrows. 2141; Tucker v. Newman, 11 Adol. & E.

d

Ch. 10] TRESPASS. 667

to recover for damages is governed by the same principles. If the
mortgagor is entitled to possession, he and only he can sue for mere
entry on the premises; but if the trespass affect the value of the se-
curity', the mortgagee will have his right of action.^'^ Similarly,
a tenant for life can recover only for injury to his particular estate.
This includes only injury to the possession and enjoyment of the
estate during his life. The reversioner can recover for an injury
to the reversion.^®

As between tenants in conmion, possession is concurrent, and all
have equal rights of possession and property. No action of trespass
will lie unless there be an actual ouster of one tenant in common by
another.^ ^ As to what constitutes ouster, regard must be had to

40; Alston v. Scales, 9 Bing. 3. Where fire destroys grass In a leased pas-
ture, and injures the sod, the owner can recover for the Injury to the sod,
and for the value of the grass in the condition it would have been but for
the flre at the time the owner would have been entitled to resume posses-
sion. Missouri, K- & T. Ry. Co. v. Fulmore (Tex. Civ. App.) 26 S. W. 238.

•• Page V. Robinson, 10 Cush. 99; Cole v. Stewart. 11 Cush, 181; James v.
Worcester, 141 Mass. 361, 5 N. E. 826. See cases there cited; Sanders v.
Reed, 12 N. H. 558; Fox v. Harding, 21 Me. 104.

ToBascom v. Dempsey, 143 Mass. 409, 9 N. E. 744; Rock wood v. Robin-
son, 159 Mass. 406, 34 N. E. 521; Ohio & M. Ry. Co. v. Trapp, 4 Ind. App.
69, 30 N. E. 812; Willey v. I^raway, 64 Vt. 559, 25 Atl. 436. One who is
made trustee of land for his children, with the right to hold for life, or to
dispose of it for the benefit of his children during life, as he should see fit,
may waive his own interest, and sue as trustee for a trespass. Meehan v.
Edwards, 92 Ky. 574, 18 S. W. 519. As between heirs and jiersonal repre-
sentatives: Marcy v. Howard, 91 Ala. 133, .8 South. 566. On the same
principle, a person entitled to a possession of the subsoil may maintain an
action of trespass against the party who digs holes in it, although other
pwsons may for the time being have exclusive right to the i)ossession of the
surface. Cox v. Glue, 5 C. B. 533.

71 Keay v. Goodwin, 16 Mass. 1; Wilklns v. Burton, 5 Vt 76; Owen v.
Foster. 13 Vt. 203; Miller v. Holland, 13 Pa. Co. Ct. R. 622; Mcriierson v.
Seguine, 3 Dev. (N. C.) 153; Booth v. Sherwood, 12 Minn. 426 (Gil. 310);
Gulf, C. & S. F. Ry. Co. v. Cusenberry, 86 Tex. 525, 26 S. W. 43. As ad-
verse possession l>etween cotenants, compare In re Grider, 81 Cal. 571, 22
Pac. 908, with Milner v. Milner, 101 Ala. 599, 14 South. 373; Gregory v.
Gregory, 102 Cal. 50, 36 Pac. 364. As to coparceners as plaintiffs on tres-
pass, vide Thorn v. Maurer, 85 Mich. 569, 48 N. W. 640. As to action by
cotenants to try title, see Boone v. Knox, 80 Tex. 642, 16 S. W. 448. Further,

668 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

the nature of the property. The effectual carrying away of a chat-
tel is an ouster.''^ If one tenant in common expels his cotenant
from the premises, he will be liable in trespass.^* He would also
be liable if a tenant should dig and carry away the turf from prem-
ises in which there is a cotenancy.^* But a tenant in common of
a coal mine is entitled to dig and carry away coal, subject to the
restriction of not appropriating more than his share. If the rule
was otherwise, he could not enjoy his proportion of the common
property.'** Denial of the cotenant's right with manifestation of
force, is sufficient to constitute ouster.'' •

«

213. Actual physical occupation or control is sufBLcient
title to si^tain trespass, but not against the true
owner or person having right of possession. If it
be without title it must be —

(a) Substantially exclusive,

(b) With a purpose to exercise possession for the bene*
y fit of the holder, and

(c) At the time of the alleged wrong.

/

as to what is ouster by adverse possession between tenants In common, see
an able note by William L. Murfree, 33 Gent Law J. 20G. And see Jordan
V. Surghnor, 107 Mo. 520, 17 S. W. 1009; Ingalls v. NewhaU. 139 Mass. 268,
30 N. E. 96; Winterburn v. Ctiambers, 91 Gal. 170, 27 Tac. 6.58; Soi-enson v.
Davis, 83 Iowa, 405, 49 N. W. 1004.

7 2 Jacobs V. Seward, L. R. 5 H. L. 464. On the same principle, trover lies
n gainst one cotenant who sent the ship owned in common out to sea, where-
by it was lost. Barnard iston v. Chapman, Bull. N. P. 34, 4 East, 121, note.

7 8 Mun*ay v. Hall, 7 G. B. 441, overruling the doctrine of Littledale, J.,
in Cubitt v. Porter, 8 Bam. & C. 257; Stedman v. Smith. 8 El. & Bl. 1; Er-
win V. Olmstoad, 7 Cow. 22t>; Dubois v. Bt>aver, 25 N. Y. 123; Odiorne v. Ly-
ford, 9 N. H. 502; Great Falls Go. v. Woi-ster, 15 N. H. 412; Thomas v. Pick-
ering, 13 Me. 337; Owen v. Foster, 13 Vt. 203; Munroe v. Luke, 1 Mete.
(Mass.) 459, 467-472; Bennett v. Glemence, 6 Allen, 10-19; Midford v. Hardl-
son, 3 MiUT)h. 164.

74 Wilkinson v. Haygaith, 12 Q. B. 837.

7 5 Job V. Potton. L. R. 20 Eq. 84.

7 0 Jefcoat V. Knotts, 13 Rich (S. C.) 50; Carpentier v. Gardiner, 29 Gal. 100;
Lessee of Clymer v. Dawkius, 3 How. (U. S.) 674; Thomas v. Hatch, 3 Sumn.
(U. S.) 170, Fed. Gas. No. 13.899.

Ch. lOJ TRESPASS. 669

Possession may be with or loiihoui Title.

When both ownership and possession coincide, trespass, of course,
lies,®* but mere possession without title, but under claim of right, is
suflicient to sustain the action.'* And even if, in conversion, the
defendant might sometimes be allowed to show title in a third per-
son, in trespass he certainly cannot.'* Jus tertii is no defense un-
less the defendant can show that the act complained of was done
by the true owner or by his authority.'' Thus a "squatter'' has such
possession as will entitle him to sue a railroad company for crossing
his land or disturbing his house, even though situated on its right
of way." Indeed, as to a person not the owner, it is immaterial

82 As where adverse possession may have ripened into title. Chesapeake &
O, Ry. C5o. V. Hickey (Ky.) 22 S. W. 441. Et vide Dhein v. Beuscher, 83 Wis.
316, 53 N. W. 551; Mitchell v. Bridger, 113 N. C. 63, 18 S. E. 91.

83 Gary v. Holt, 2 Strange, 1238, 11 Bast, 70: Catterls v. Cowper. 4 Taunt.
Ml; Jeffries v. Railway Co.. ."> El. & Bl. 802; Harker v. Birkbeck, 3 Bur-
rows, 1556; Anthony v. Railroad Co., 162 Mass. 60. 37 N. E. 780; Marks v.
Sullivan, 8 Utah, 406, 32 Pac. 668; McFeters v. Pierson, ir> Colo. 201; 24 Pao.
1076; Martin v. Pittman, 3 Colo. App. 220. 32 Pac. 840; Stahl v. Grover, 80
Wis. 650, 50 N. W. 589; Rogers v. Duhart, 97 Cal. 500, 32 Pac. 570; Barbarick
V. Anderson, 45 Mo. App. 270.

8* Sweetland v. Stetson, 115 Mass. 49; Anthony v. Railroad Co., 162 Mass.
60, 37 N. E. 780; Hoyt v. Gelston, 13 Johns. 141; Cook v. Howard, Id. 276-28i;
Aikln V. Buck, 1 Wend. 466; Demick v. Chapman, 11 Johns. 132; Squire v.
HoUenbeck, 9 Pick. 551; Hanmer v. Wilsey, 17 Wend. 91; Parker v. Hotch-
kiss, 25 Conn. 321; Todd v. Jackson, 26 N. J. Law, 525; Ashmore v. Hardy,
7 Car. & P. 501; Whlttington v. Boxall, 5 Q. B. 139; Cary v. Holt, 2 Strange,
1238; Wustland v. Potterfleld, 9 W. Va. 438; Craig v. Gllbreth, 47 Me. 416;
GUson V. Wood, 20 111. 38; Gardiner v. Thibodeau. 14 JjSl. Ann. 732; Boston
V. Neat, 12 Mo. 125; Crawford v. Bynum, 7 Yerg. 381; Fuller v. Bean, 30 N.
H. 181; Golden Gate Mill & Min. Co. v. Joshua Hendy Mach. Works, 82 Cal.
184, 23 Pac. 45; Cilner v. Pike, 2 Head (Tenn.) 398; Tarry v. Brown, 34 Ala.
Io9; Kemp v. Seely, 47 Wis. 687, 3 N. W. 830.

8« Trevilian v. Pyne, 1 Salk. 107; Graham v. Peat, 1 East, 244; Chambers
V. Donaldson, 11 East, 65; Catterls v. Cowper, 4 Taunt. 547. The plea lib-
eram tenementum is a complete answer to an action of trespass quare clau-
sum fregit. See post, pp. 686, 687, "Defenses.**

•• Witt V. St Paul & N. P. Ry. Co., 38 Minn. 12.3, 35 N. W. 862: Ft. Worth
& N. O. Ry. Co. V. Smith (Tex. Civ. App.) 25 S. W. 1032; Galveston, H. &
S. A. Ry. Co. V. Rhelner, Id. 971; Pacific Exp. Co. v. Dunn, 81 Tex. 85, 16 S.
W. 792.

670 WKONGS TO POSSESSION AND PROPERTY. [Ch. lO

whether or not the defendant's claim of title is valid, if he has actual
possession.*' Persons in possession of lands may recover for crops
taken away.'* Soa trespasser may sue a wrongdoer for bumingwood
he had gathered.*' Actual possession of chattels pure and simple
will sustain an action of trespass. Thus, a drayman, who, as bailee,
had a wagon containing a load of furniture in the street, may re-
cover against one who injured the horse, wagon, and load.'° In
case of purchase, possession is sufficient, although the title by agree-
ment remains in the vendor.'^

87 Graham v. Peat, 1 East. 244; Cutts v. Spring, 15 Mass. 135; Bigelow.
Tiead. Cas. 341. Where there Is a tortious possession of land not amounting
to disseisin, the constructive possession as between the tort feasor and the
party having the legal title continues in him who has the right; but the tort
fciasor may maintain tresi)ass against a stranger who disturbs his possession,
and the stranger cannot plead that the tort feasor's possession was the pos-
session of the true owner. Langdon v. Templeton, 66 Vt. 173, 28 Atl. 866.
Compare Hulse v. Brantley, 110 N.* C. 134, 14 S. E. 510; United Copper Min-
ing & Smelting Co. v. Franks, 85 Me. 321, 27 Atl. 185.

88 Potter V. lAmbie, 142 Pa. St. 535, 21 Atl. 888. Where plaintiff was in
possession of lands under claim of title, he can recover for hay raised thereon,
and destroj'eil by fire set by defendant's Iwomotive, without showing title to
the land. McClellan v. St. Paul, M. & M. Ry. Co. (Minn.) 59 N. W. 97a

80 Northern Pac. R. Co. v. Lewis, 2 C. C. A. 446, 51 Fed. (558; Gulf, etc.,
Co. V. Johnson, 4 C. C. A. 447, 54 Fed. 474. As to right of owner to sue for
removal of timber cut, see Buker v. Bowden, 83 Me. 67, 21 Atl. 748; McClos-
key v. Powell, 138 Pa. St. 383, 21 Atl. 148, 150; Gunn v. Harris, 88 Ga. 439,
14 S. E. 593.

00 Laing v. Nelson, 41 Minn. 521, 43 N. W. 476; Brewster v. Warner, 13(5
Mass. 57; Wilson v. Haley Livo-Stock Co., 153 U. S. 30, 14 Sup. Ct. 768;
Matthews v. Smith's Exp. Co. (Co. Ct.) 23 N. Y. Supp. 132; St. Louis, I. M. &
S. Ry. Co. V. Biggs, 50 Ark. 169, 6 S. W. 724, followed by St. Louis, I. M. &
S. Ry. Co. V. Taylor, 57 Ark. 136, 20 S. W. mS3. Possession of wife's cow
entitles to trespass against one who shot it. Taylor v. Hayes, 63 Vt. 475. 21
Atl. 610. Even if the wife owns the fee on which the husband built a house
in which he lived, she can sue in trespass for forcibly entering it. Alexander
V. Hard, 64 N. Y. 228. Et vide Martin v. Rwtor, 101 N. Y. 77, 4 N. E. 183.
The sheriff, only, can sue in trespass for property taken undor execution by
hlni. Special property: Dufour v. Anderson, 95 Ind. 302. And see Simpson
V. Dufour, 126 Ind. 322, 26 N. E. 69, collecting cases at page 3a"i, 126 Ind.,
and page 69, 26 N. E.; Hanchett v. Ives. 33 HI. App. 471.

•1 Fields V. Williams, 91 Ala. 502. 8 South. 808.

Ch. 10] TRESPASS. 671

Possesffion viust be Exchmre.

The possession must, however, be substantially exclusive. Where
the basis of the action for trespass is possession de facto, the physical
control must extend over the whole subject-matter •* for which pos-
session is claimed, and must be substantially exclusive.** Thus, one
who works a part of a seam of coal does not thereby acquire a de
facto possession of the whole seam. If two persons are in one field
at the same time, and both assert ownership, and neither has title,
neither can sue in trespass, because the possession is not exclusive.'^

Possession must be Had Animo Possidendi.

"The corporeal act by which possession is acquired must be ac-
companied by a definite act of the mind, in order to enable posses-
sion actually to arise." •* Therefore, where one used land which he
knew was to have been ultimately dedicated to the public for the
use of a street, not under an assertion of ownership, but merely as
a dumping ground for refuge from his foundry, there was no posses-
sion.»«

Possession at Time of Wrong ^ not of Action.

The possession which the law requires is possession at the time
of the alleged trespass, not at the time of the commencement of the
action.* If, therefore, such possession be negatived by the plead-
ings, the plaintiff cannot recover.f He must prove such possession^

»2 Aiken v. Buck, 1 Wend. 466; Framwell, J., In Covtrdale v. Charlton, 3 Q.
B. Div. 376.

•a Earl of Dartmouth v. Spittle. 19 Wkly. Rep. 444; Ashton v. Stock, 6 CIl
Dlv. 719.

•* Barnstable v. Thacher. 3 Mete. (Mass.) 239; Reilly v. Thompson, 11 Ir.
R. Com. Law, 238; Tottenham v. Byrne, 12 Ir. Com. Law, 376.

•5 2 Sav. Poss. § 21.

»« Leigh V. Jack, 5 Exch. Div. 26i; Coverdale v. Charlton, 4 Q. B. Div. 104-
122.

♦Williams v. McGrade, 18 Minn. 82 (Gil. 65); Hanlon v. Undon Pac. Ry.
Co., 40 Neb. 52, 58 N. W. 590; Dhein v. Beusclier, 83 Wis. 316, 53 N. W. 551.
Scheffel v. Weiler, 41 111. App. 85. Where, in an action for injury to land,
plaintiff shows that the patent was issued to a person with whom he does
not connect himself, proof of title by adverse possession, which did not ma-
ture until after the injury, will not support a recovery. Gulf, C. & S. F. Ry.
Co, v. Cusenberry, 86 Tex. 525, 26 S. W. 43.

t Moon V. Avery, 42 Minn. 405, 44 N. W. 257.

672 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

although the defendant pleaded only the general issue-t It does,
not assist the case of the plaintiff, who did not have actual posses-
sion at the time of the wrong chained, that subsequently, and be-
fore his suit was brought, he corrected an imperfect title or ac-
quired title.ll But one who acquires property after levy and before
sale may recover in trespass against a sheriff for selling such prop-
erty as that of another.ff

214. Constructive possession is either the possession of an
agent or servant, or an immediate right to posses-
sion, or possession conferred by la^w in certain
cases, independently of any phyBical apprehension
or transfer.*'

Where there is no actual physical control, or occupancy, posr
session is determined by title. The occupation of premises by a
servant, where there is no intention to possess them in any other
way, is that of the owner. Where there is no actual possession, in
proof of the right to possess, upon such proof, the law confers pos-
session, independent of physical control.** Thus, a party in pos-
session of an inclosed piece of land may have an action for trespass
committed on an adjoining unfenced woodland to which he had
title.*" If two persons are in possession of one field, and each assert
ownership, whoever has title can sue in trespass.*®^ But, to war-

t Meeks v. Willard (N. J. Sup.) 29 Atl. 318.

II Davis V. Elmore, 40 S. C. 533, 19 S. E. 204; Colorado Consolidated Land
& Water Co. v. Morris, 1 Colo. App. 401, 29 Pac. 302; Missouri L. & M.
Co. V. Zeltinger, 45 Mo. App. 114; but see Ballard v. Carmichael, 83 Tex. 355,
18 S. W. 734; Gruner v. WesUn, 66 Tex. 209, 18 S. W. 512.

ft Kitchen v. McCloskey, 150 Pa. St. 376, 24 Atl. 688; Schwartz v. McClos-
key, 156 Pa. St 258, 27 Atl. 300; Whitman v. MerriU, 125 Mass. 127. As be-
tween lessor and lessee, see Gulf, O. & S. F. Ry. Co. v. Cusenberry, 8C Tex. 525,
26 S. W. 43.

»7 Eraser, Torts. 38; Smith v. MiUes, 1 Term R. 480; PoL Torts (3d Ed.) 300,
note k.

»8 Booth V. Sherwood, 12 Minn. 426 (Gil. 310); Meehan v. Edwards, 92 Ky.
574, 18 S. W. 519; Thacker v. Howell (Ky.) 26 S. W. 719; Maysville & B. S. R,
Co. V. Pelham (Ky.) 20 S. W. 384.

»o Penn v. Preston, 2 Rawle, 14. Compare Aiken v. Buck, 1 Wend. 466.

100 .Tones v. Chapman, 2 Exch. 803; Reading v. Royston, 2 Salk. 423; Butcher
V. Butcher, 7 Barn. & 0. 309.

i7 9

Ch. 10] TRESPASS, 67

rant recovery, the title must be proved.^®^ An equitable title may
be sufficient.^®* But a person holding lands under contract of sale
not giving possessory rights, cannot sue for trespass to such lands
if vacant; ^®* but a contract is sufficient, if it entitles to posses-
sion.i»*

SAME—DEFENSES.

216-216. Justification of a trespass may be —

(a) Authority of law in the form of—

(1) Legal process, civil or criminal; or

(2) Otherwise, as abatement of nuisance, distress,

necessity, or private defense.

(b) Consent of owner or possessor, which may be —

(1) Express or implied;

(2) Se vocable or irrevocable.

(c) Property in defendant, which may be —

(1) An estate in fee, or less estate; or

(2) Special property, like easements.

Aviharity of Law — Legal Process.

As has been previously seen, authority of law without excess or
abuse is a good defense to an action on tort.^®*

101 Odd Fellows' Sav. Bank v. Turman (Cal.) 30 Pac. 906; Mayo v. Spartan-
burg, U. & C. R. Co., 40 S. C. 517, 19 S. E. 73. Proof of title to an undivided
interest in a survey will support a recovery of the entire survey against a
stranger to the title. HIU v. Smith (Tex. Civ. App.) 25 S. W. 1079. Plaintiff,
having shown title to only half the survey, cannot recover for an injury where
the evidence leaves it indeteiminable on which half it was Inflicted. Gulf, C.
& S. F. Ry. Co. v. Cusenberry, 8b Tex. 525, 26 S. W. 43.

i«2 Walton V. PoUock, 12 Pa. Co. Ct. R. 216; New York & T. Land Co. v.
Gardner (Tex. Civ. App.) 25 S. W. 737. Compare Kircher v. Murray, 8 C. O. A.
448, 60 Fed. 48, with Dawson v. McLeary (Tex. Civ. App.) 25 S. W. 705. Ten-
ant in dower may sue trespasser. Willey v. Laraway, (54 Vt. 559, 25 Atl. 436.

108 Des Jardins v. Thunder Bay River Boom Co., 95 Mich. 140, 54 N. W. 718;
Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001.

i'>4luderlied v. Whaley, 65 Hun, 407, 20 N. Y. Supp. 183; Salimonie Mining
& Gas Co. V. Wagner, 2 Ind. App. 81, 28 N. E. 158.

105 Ante, p. 143. As to trespass by contractors making public Improve-
ment, see Kinser v. Dewitt, 7 Ind. App. 597, 34 N. B. 1014. By otficer exe-

1.AW OF TORTS— 43

674 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

An entry upon the land of another Is not a trespass unless it be
unjustifiable. It may be justified, among other things, by legal pro-
cess.*®' Civil process of law justifies an oflScer in breaking in the
door of an inner room,^®^ but it does not justify him in breaking the
outer door.^®* ^fEvery man's house is his castle." This is an old
expression, and comes down to us from those feudal times when the
grand people lived in large and fortified houses, which were called
*'castles." In these castles they resisted any entrance except by
permission. From this source has come the expression. In accord-
ance therewith, every man's abode, however humble, is his castle;
and it is said, "Even though the winds of heaven may blow through
it, the king of England cannot enter it." ^®*

Where the officer executing civil process is guilty of a trespass
in forcing an entrance into a dwelling house, its owner is justified
in resisting further progress in service of the writ by force.^*®
Where, however, the writ required the ofiScer to take possession of
a particular thing, as in a writ of replevin, the officer has been jus-
tified in breaking down the outer door, after first demanding admis-
sion.^^* Moreover, it would seem that specific orders of the court

outing process: Sternwald v. Siegel, 7 Misc. Rep. 70, 27 N. Y. Supp. 375;
Richardson v. Jankofsky (Tex. Civ. App.) 23 S. W. 815; Palmer v. Shenkel.
50 Mo. App. 571; Howell v. Caryl* Id- **40; Piepgras v. Edmunds, 5 Misc.
Rep. 314. 25 N. Y. Supp. 9G1; Id. (Super. N. Y.) 2G N. Y. Supp. 1134; Breck-
woldt V. Morris, 140 Pa. St. 291, 24 Atl. 300.

106 Breck woldt v. Morris, 149 Pa. St. 201. 24 Atl. 300.

107 Williams v. Spencer, 5 Johns. 352; Buttertleld v. Oppenheimer, (J4 Hun,
033, 18 N. Y. Supp. 826; Breck woldt v. Morris, 149 Pa. St. 291, 24 Atl. 300;
Grim V. Robinson, 31 Neb. 540, 48 N. W. 388; Hubbard v. Mace, 17 Johns.
127; State v. Beckner, 132 Ind. 371, 31 N. B. 950; Com. v. Tobin, 108 Mass.
426. Compare Jones v. Herron, 31 Wkly. Notes Cas. 263, with Dexter v.
Alfred, 64 Hun, 636, 19 N. Y. Supp. 770.

loscurlewis v. I^aurle, 12 Q. B. 640; Burdett v. Abbott, 14 East, 1-154;
Semayne's Case, 1 Smith, Lead. Cas. (9th Am. Ed.) 228, 5 Coke, Ola; Lloyd v.
Sandilands, 8 Taunt. 250; Ratcliflfe v. Burton, 3 Bos. & P. 223; Welsh v. Wil-
son, 34 Minn. 92, 24 N. W. 327.

109 Hammond v. Hightower, 82 Ga. 290-292, 9 S. E. 1101. Et vide State v.
Armfield, 2 Hawks, 246.

110 Curtis V. Hubbard, 4 Hill, 437; State v. Beckner, 132 Ind. 371, 31 N. E.
050.

m Keith v. Johnson, 1 Dana, 604; Howe v. Oyer, 50 Hun, 559, 3 N. Y.
Supp. 726.

Ch. 10] TRESPASS. 675

may justify the oflBcer in breaking such door.*** At common law,
the sheriff may justify the. breaking open of the doors of a third per-
son to execute legal process on a person, or property removed theiie
to avoid levy of an execution. He does the same, however, at his
peril, and, if he does not find the person or his property, he is a
trespasser.**^ An officer having once gone lawfully to another man's
house, and been by force ejected therefrom, may break open the
door in order to re-enter.*** The reservation, however, extends only
to a man's house. It will not be extended to a mill, shop, barn, or
outhouse connected with it*** An officer may break into such a
building to serve civil process, if his demand for admission is re-
fused.

It was one of the resolutions in Semayne's Case that, "within all
cases where the king is party, the sheriff (if the doors be not opened)
may break into the parly's house, either to arrest him, or to do some
otlier execution of the king's, if otherwise he cannot enter. But be-
fore he breaks in, he ought to signify the cause of his coming, and
to make request to open the doors." In accordance with this, it is
generally recognized that a party's own house is no sanctuary for him
against criminal process.*** Thus, an officer armed with a search

11* Harvey v. Harvey, 26 Ch. Dlv, 644. The second resolution of Seniayne's
Case was that ''when any house is recovered by any real action for by ejec-
tione flrmse, the sheriff may break the house, and deliver the seisin or pos
session to the demandant or plaintiff." 5 Coke, Ola.

113 Semayne*s Case, 5 Coke, 91a, 1 Smith, Lead. Cas. (9th Am. Ed.) 22S;
Johnson v. Leigh, 6 Taunt. 246; Hutchison v. Birch, 4 Taunt. 027, explaining
Ratcliffe v. Burton, 3 Bos. & P. 223.

11* Eagleton v. Gutterid^e, 11 Mees. & W. 4(»5; Pugh v. Griffiths, 7 Adol.
& E. 838; Aga Kurboolie Mahomed v. Queen, 4 Moore, P. C. 239; Bannister
V. Hyde, 2 EL & El. <527.

115 Clark V. Wilson, 14 R. 1. 11, citing Penton v. Brown, Sid. 18(»; Ilaggerty
V. Wilber. 10 Johns. 287; Brown v. Glenn, 16 Q. B. 254; Soliusky v. Lincoln
Sav. Bank, 85 Tenn. 368, 4 S. W. 836; Douglass v. State, 0 Yerg. 525; Ful-
1am V. Stearns, 30 Vt. 443; Crocker v. Carson, 33 Me. 430. As to wliat con-
stitutes breaking Into a house by an officer who holds civil pro^-esN, see Curtis
?. Hubbard, 4 Hill, 437, 1 Hill, 336; Ryan v. Schilcock, 7 Exch. 72, 21 I^w J.
Exch. 55; Nash v. Lucas, L. R. 2 Q. B. 590.

iitf Harvey v. Hai-vey, 26 Ch. Dlv. 644; Hancock v. Baker, 2 Bos. & P.
260; Barnard v. Bartlett, 10 Cush. 501; Burdett v. Abbott, 14 East, 157;
Launock v. Brown, 2 Barn. & Aid. 592; Fost. Horn. 320. But the breaking

<)76 WRONGS TO POSSESSION AND PROFEKTY. [Ch. 10

warrant may search for stolen goods, and, if the door of the house
be shut, he may break it open, after his demand to open it has been
refused, whether the stolen goods are there or not.^^^

S(ivie — Withmit Leifal Process.

The law autliorizes entry irrespective of the actual consent of an-
other, although no legal process be issued. "The law gives authority
to enter into a common inn or tavern. So to the lord to distrain
• * * to him in reversion, to see if w^aste be done, or to demand
money payable." ^^® One of the most important licenses to enter
given by law is to go upon adjoining land to abate, without un-
reasonable damage, a nuisance, if such abatement can be effected
without a breach of the peace.^^*

Analogous to the right of abatement is the right of distress.^*®
Distress damage feasant is the taking by the occupier of lands of
chattels (commonly, but not necessarily, animals) found incumbering
or doing damage on the land. The right given by the law is the
right of self-protection against the continuance of a trespass already
committed.^*^ At common law, the remedy was employed most
commonly where cattle strayed by reason of defect of fences which
the occupier was bound to repair. To entitle a party to distress
damage feasant, "the thing distrained must be taken in the very

Into a house cannot be justlfled by mere suspicion of a crime. 1 Hale, P. C.
459; State v. Smitli, 1 N. H. 346.

117 2 Hale, P. C. 151; Chipman v. Bates, 15 Vt. 51; Beaty v. Perkins, 6
Wend. 382; Allen v. Colby, 47 N. H. 544.

118 The Six Cai-peuters' Case, 8 Coke, 14Ga; 3 Bl. Comra. 212; 1 Cow. Tn^at
§ 500; Newkirk v. Sabler, 9 Barb. G52.

119 Bac. Abr. "Nuisance," C; 3 Bl. Comm. 5; Rex v. Rosewell, 2 Salk. 459;
Mayor of Colchester v. Brooke, 7 Q. B. 339-376. As to notice of nuisance and
retiuest to abate, see Davies v. Williams, 16 Q. 6. 546. It would appear that
after such notice and request a building wrongfully erected may be pulled
down (Jones v. Jones, 1 Hurl. & C. 1), even If a person be in it at the time
(Burling v. Bead, 11 Q. B. 904). The subject Is discussed somewhat at length
under "Abatement of Nuisance."

120 Ante, p. 350, "Remedies"; Sausing v. Bisinger (Tex. App.) 16 S. W.
249; Brown v. Stackhouse, 155 Pa. St. 582, 26 Atl. 609. As to right to
enter premises to distrain for rent, see Keane v. Reynolds, 2 El. & Bl. 748.

121 Pol. Torts, 473; Tyrringham's Case, 4 Coke, 360; Hannan v. Mockett, 2
Bam. & C. 934; Hamlin v. Mack, 33 Mich. 103; Hale v. Clark, 19 Wend. 498;
Pierce v. Hosmer, 66 Barb. 345.

Ch. 10] TRESPASS. 677

act" *** Entry to make a distress is only justified when it does not
result in a breach of the peaee.^^* The common-ftiw rules as to dis-
tress, and especially as to distress damage fe»ant,^^* have been
declared inapplicable by decisions, and abolishJcl or extremely re-
stricted by statute, in almost all parts of the ujited States.

Entering on one's lands for the purpose <■ recapturing goods
wrongfully placed there by the trespass of tl|e landowner himself
may be justified; ^^* but this is not true if it cannot be shown how
the goods got there, or if it be proved that they were put there by
the trespass of a third party."* But there is no implied right of
this kind which justifies a breach of the peace, although there is
no statute analogous to the statute of forcible entry and unlawful
detainer."^ Nor may defendant take goods which came lawfully
into plaintiff's hands. ^^* Where cattle stray into another's field be-

12a Vaspor V. Edwards, 12 Mod. 658. Further, as to common law, see
Cape V. Scott, L. R. 9 Q. B. 209; Goodwyn v. Cheveley, 4 Hurl. & N. 631;
Williams v. Spencer, 5 Johns. 352.

1*8 Nash V. Lucas, L. K. .2 Q. B. 590; Orabtree v. Robinson. 15 Q. B.
DIv. 312.

is^Sprague v. Railroad CJo., 6 Dak. 86, 50 N. W. 617; Frazier v. Nortinus.
34 Iowa, 82; Oil v. Rowley, 69 111. 469; Rnter v. Foy, 46 Iowa, 132; Northcote
T. Smith. 4 Ohio Cir. Ot R. i)65; Little Rock & F. S. Ry. Co. v. Finley, 37
Ark. 362; Eastman v. Rice, 14 Me. 419; Crocker v. Mann, 3 Mo. 472; Mooney
V. Maynard, 1 Vt. 470. Contra, Stewart v. Bennlnger, 138 Pa. St 437, 21
All. 159; Bnlpit y. Matthews, 42 111. App. 561.

125 Patrick v. Colerick, 3 Mees. & W. 483; Chambers v. Bedell, 2 Watts &
S. 225; Hartwell v. Kelly, 117 Mass. 235; Spencer t. M'Gowen, 13 Wend.
25&

i*»3 Bl. Comm. 4; Anthony v. Haney, 8 Blng. 186; Heermauce v. Vernoy,
6 Johns. 5; Salisbury v. Green, 17 R. I. 758^ 24 Atl. 787; Blake v. Jerome, 14
Johns. 400; BoUing v. Whittle. 37 Ala. 35; Dixon v. Clow. 24 Wend. 18S.
Compare McLeod v. Jones. 105 Mass. 403, with Hartwell v. Kolly, 117 Mass.
235.

H7 Harding v. Sandy, 43 111. App. 442; Salisbury v. Greeu, 17 R. I. 758, 24
Atl. 787; Richardson V. Anthonj-, 12 Vt 273. However, where property is
taken away from those in jwssession, and In good faith claiming possession,
forciblj', without authority, and. in their presence, they may recapture it witli-
out resorting to legal process. State v. Dooley, 121 Mo. 591, 26 S. W. 558.

i2« "If I ball my goods to a mjin. I cannot Justify entering Ins house to take
my goods, for it was by no wrong that they came there, but by the act of us

678 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

cause of defective fences, the owner is bound to remove them within
a reasonable time.**^ Fresh re-entry is not so much justified as
authority of law to re-enter as it is recogpized by a denial of any
right acquired from temporary possession by the trespasser.^***

In the same class of justification by law are those cases which
necessity constitutes as justification. Thus, where a highway or
way of necessity has become impassable it is for the public's good
that people should be allowed to pass over the adjoining land.*'*
Where it is necessary to enter upon the land of another for the
presentation of life *'^ or property, as by entry for the purpose of
preventing the spread of fire,*^^ necessity is a suflflcient excuse. By
way of contrast, the right to commit a trespass in pursuit of ani-
mals terse naturae is not now recognized by English or American

both." 9 Edw. IV. p. 35, pL 10; Wimams v. Morris. 8 Mees. & W. 488; Wilde
V. Waters, 24 Law J. C. P. 103; Webb v. Beavan, 6 Man. & G. 1035. But
one may enter the close of another to rescue a boat of another oast there by
a storm. Proctor v. Adams, 113 Mass. 376.

120 "If I drive my beasts along the highway^, and you have opened unin-
closed land adjoining the highway, and my beasts enter your land and eat the
herbage thereof, and I come freshly and chase them out of your land, you
shall not have an action against me, for the chasing of them was lawful.*'
6 Edw. IV. p. 7, pi. 18; Goodwyn v. Cheveley, 4 Hurl. & N. G31; Tillett v.
Ward, 10 Q. B. Div. 17; Hartford v. Brady, 114 Mass. 46(5. Et vide Bi-owne
V. Providence, H. & F. R. Co., 12 Gray, 55; Towne v. Nashua & L. R. R.,
124 Mass. 101; Amstein v. Gardner, 132 Mass. 28; Taft v. New York, P. &
B. R. Co., 157 Mass. 297-302, 32 N. E. 168; Cool v. Crommet, 13 Me. 250;
Bush V. Brainard, 1 Cow. 78, and note.

180 Ante, pp. 050, 057.

i3iAbsor V. French, 2 Show. 28; Asser v. French, 2 Lev. 234; Ante, note
122, to necessity under variations to the normal right to sue; Campbell v.
Race, 7 Cush. 408; Morey v. Fitzgerald, 56 Vt 487; Carey v. Rae, 58 Cal. 159.
There is, however, no such privilege with respect to a private right of way,
which must be confined strictly to the terras of grant. Porafret v. Ricroft,
1 Saund. 321; Taylor v. Wliitehead, 2 Doug. 745; Bullard v. Harrison, 4 Maule
& S. 387. It is otherwise where the gi-antor of a private right of way has
obstructed it so it cannot be used except by deviation on his adjacent land.
Selby V. NetUefold, L. R. 9 Ch. 111.

132 Y. B. 37 Hen. VI. p. 37, pi. 26.

138 Per Littleton, J., 9 Edw. IV. p. 35, pi. 10; American Print Works v.
Lawrence, 23 N. J. Law, 590, collecting cases; Proctor v. Adams, 113 Mass.
376. Compare Jones v. Richmond, 18 GraL (Va.) 517.

^h. 10] TRESPASS. 679

law.*'* Nor is entry upon another's premises to cut down timber
justified simply because it stood clo^e to the line."* A trespass may
be excused on the ground that it is committed in self-defense, in order
to escape some special danger or apparent peril, or in defense of the
possession of, or to rescue, a man's goods or chattels.*"* Generally,
any public authority or direction carries with it an exemption from
liability for what is necessary and proper to carry it into effect***
A trespasser cannot escape liability by handing the fruits of the tres-
pass or wrong over to another. Thus, where the sheriff takes the
goods of one man under an attachment of another, a recovery may
be had against him for the trespass after he has gone out of oflftce,
though his successor sold the goods, and received the proceeds aris-
ing therefrom.*'*

Abuse of License — Trespass ah initio.

Abuse, not consisting in mere nonfeasance, of license given by
law but not of license given by parties, to enter upon lands, makes
trespass ab initio.

i»* Paul V. Summerhayes, 4 Q. B. Div. 9; Glenn v. Kays, 1 lU. App. 479;
SterUng v. Jackson. 69 Mich. 4S8, 37 N. W. f^io.

n* **No doubt," said Howard, J., in Toledo, St. L. & K. C. li. Co. v. Loop
<Ind. Sup.) 39 N. E. 306, "if a bouldei*, a log. or a decrepit tree threaten to
roll or faU from an adjoining land upon a railroad track or other highway, and
there was no time to lose in seeking permission from the owner, any one might
enter on the land to avert the danger." Mayhew v. Burns, 103 Ind. 328, 2
N. R. 793; Cooley, Torts, p. 46; Wood, Nuls. § 107. "However, • * *
all peril may not be averted. It is the immediate and probable, and not
the remote and barely possible, that we are called upon to guard against.
♦ ♦ ♦ As for ti-ees that grow so close to the line that their bi-anches ex-
tend over the adjoining premises, there is no doubt that, if injury is shown,
the adjoining owner may have his action in damages, or he may cut off the
overhanging branches so far as they extend above the soil. He may not,
though, cross his neighbor's line and cut down tlie tree. Wood. Nuis. § 108;
I^emon v. Webb [18JH] 3 Ch. 1."

i3« Ball, Torts & Cont. 21.

187 Southern Bell Telephone & Telegraph Co. v. Constantine, 9 C. C. A. a^ia
61 Fed. 61.

1*8 Dnke v. Vincent, 29 Iowa, 308; Wise v. Jefferis, 2 C. C. A. AVI, 51 Fed.
643. The rule is the same In trover. Llvermore v. Northnip, 44 N. Y. 107.
Nor can liabiUty for a nuisance be escaped by demise of premises on which
It is created. Post, p. 795, "Nuisance."

680 WRONGS TO POSSESSION AND PROPERTY. [Ch. lO

Where the law authorizes ODe to enter upon the premises of an-
other, and such person, having entered, abuses that license, he be-
comes a trespasser ab initio. His misconduct relates back so as to
make his original entry tortious. In the celebrated Six Carpenters*
Case, ^^^ six carpenters entered an inn and were served with wine,
for which they paid. They afterwards asked for more wine, and
were supplied with it. This they refused to pay for. They were
sued as trespassers ab initio. The court laid down the three follow-
ing rules: (1) Where a man abuses an authority or license given
him by law, he becomes a trespasser ab initio; (2) where a man
abuses an authority or license given him by another party, he may
be punished for such an abuse, but he is not a trespasser ab initio;
and (3) a mere nonfeasance cannot make a person who had authority
or license given him by law a trespasser ab initio. The doctrine of
the case has been repeatedly confirmed.^*^ However, its last rule
has been criticised as being merely artificial, and in many cases
has been practically disregarded.**^ The present tendency of the
cases, moreover, is to disregard the merely verbal difference in-
volved in the distinction between misfeasance and nonfeasance.***
But if a landlord, lawfully entering upon premises for the purpose
of making a distress, abuse this right, given him by law, by con-
verting the goods to his own use, this would be such a positive
wrong, and not the mere omission to do something, and would make
him a trespasser ab initio.**' Jjn order that a man may be made a
trespasser ab initio, where the law has given him the entry, the acts

18»8 Coke, 14r>a; 1 Smith, Lead. Cas. 144.

i*ooxley V. Watts, 1 Term R. 12; Bagrshaw v. Goward, BuU. N. P. 81;
Gargrave v. Smith, 1 Salk. 221; Dye v. Leatherdale, 3 Wils. 20; Barnett v.
Earl of Guildford, 11 Exch. 19. And see Ordway v. Ferrin, 3 N. H. 60;
Adams v. Rivers, 11 Barb. 390; Hale v. Clark. 19 Wend. 498; Whitney v.
Backus, 149 Pa. St. 29, 24 Atl. 51; Wilbur v. Turner, 39 111. App. 526; Baker
V. Lewis, 150 Pa. St. 251, 24 Atl. 616; Spades v. Alurray. 2 Ind. App. 401, 28
N. B. 709.

1*1 Note to Barrett v. White (3 N. H. 210) in 14 Am. Dec. 3(55.

1*2 Ante, c. 1.

1*8 Gargrave v. Smith, 1 Salk. 221. But see 11 Geo. II. c. 19, § 19. Attack
V. Bramwell, 3 Best & S. 520. Further, as to nonfeasance, see West v. Nibbs,
4 C. B. 172; Vwtue v. Beasley, 1 Moody & R. 21; Evans v. Elliott, 5 AdoL
& E. 142; Jacobsohn v. Blake, 6 Man. & G. 925.

Ch. 10] TRESPASS. 681

of abuse must be of such a character that there will be continued
trespass in the absence of license.***

Consent of Chm\er or Occupants

The justification of a trespass by the consent of owner or occu-
pant is the logical application to trespass of the familiar principles
already considered that no one can object to what he has con-
sented to. The consent of the party may be expressed, or it may
be implied. *Tji the common intercourse of life between friends and
neighbors, tacit licenses are constantly given and acted on." ^^^ Thus,
the license to enter on land may be inferred from entries made in
course of friendly visiting extending over a great period of time.***
A mere agreement to sell does not necessarily import a license to
enter on the premises; *'"' but if a man made a lease reserving the
trees, the law will imply a right to enter and to show them to the
purchaser.*** It is to be determined by the jury, upon considera-
tion of all the circumstances of the case.*** The consent, however^
must be that of the owner and occupant, and not of a third per-
son.*** One person cannot protect himself by an alleged or actual

1** Taylor v. Jones, 42 N. H. 25-34, and cases cited; Stone v. Knapp, 29 Vt.
501; MitcheU v. MiteheU, 54 Minn. 301, 55 N. W. 1134 (special administrator);
Adams v. Rivers, 11 Barb. 390. And, genei'aUy, see discussion of this subject
in English and American note to the Six Carpenters' Case in Smith, Lead.
Cas. (8th Am. Ed.) p. 257.

165 Pol. Torts, § 308.

i*« Martin v. Houghton, 45 Barb. 258, and cases cited at page 2G0.

187 Eggleston v. Railway Co., 35 Barb. 162; Fagan v. Seott, 14 Hun, 162.

158 Harmon v. Harmon, 61 Me. 222^224. As to right to open family tomb
and dispose of corpse, see Lalcin v. Ames. 10 Cush. 198. Et vide Fletcher
V. Evans, 140 Mass. 241, 2 N. E. 837. As to what license is sufficient to
justify entering a house, see Cutler v. Smith, 57 111. 252.

i5»Lamp€t V. Starkey, 10 Colie, 46b. So, under a verbal contract of sale
of standing trees to be cut and removed by the purchaser, the law Implies
a license for the purpose of cutting and removing the same. Duryea v.
Smith, 62 Hun, 619, 16 N. Y. Supp. 688. Et vide Winterbourne v. Morgan,
11 East, 396; Bac. Abr. "Trespass," F; Keane v. Old Colony R. Co., 161
Mass. 203, 36 N. E. 788.

160 Neither a trespasser nor tenant can grant a valid easement over the
land of another. Gentleman v. Soule, 32 111. 271. Permission to trim plain-
tiff's trees, given defendant by a person having no authority, does not ex-
cuse defendant's trespass in acting on such permission, though he thought

682 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

agreement with another trespasser.*** Nor does the instruction of
plaintiff's wife to remove liousehold goods justify.'** Cases of this
kind often arise, where the third person acts on the mistaken sup-
position that he can confer the authority. As to lands, possession
of color of title only by the licensor is no defense to the licensee.***
The cases as to personal property would not seem to be agreed
whether or not, under such circumstances, taking possession by the
supposed owner is trespass, where there has been no demand on the
real owner and refusal to deliver to him.*** Where a party justi-
fies under authority from the individual or authority of law, he must
alike show that he acted strictly within the provisions of such au-
thority.**'' An excess of license is a trespass.***

A license which is not so coupled with an interest as to become a
grant is personal as between the parties, and cannot be assigned to
a stranger.**^ It is said that there is no such right as a license, fall-
such person had authority. Ruling v. Henderson, 101 Pa. St. 553, 29 Atl.
276; Beaumont Lumber Co. v. BaUard (Tex. Civ. App.) 23 S. W. 920.

i«i Hazel ton v. Weelc, 49 Wis. 6G1, 6 N. W. 309. Et vide Olsen v. Upsahl,
09 111. 273; Williamson v. Fischer, 50 Mo. 198; Smith v. Felt, 50 Barb. 612;
Mclntyre v. Green, 36 Ga. 48; W^illlams v. Sheldon, 10 Wend. 654; Woodruff
V. Halsey, 8 Pick. 333; Vosburgh v. Moak, 1 Cush. 453.

i«2 Burns v. Klrkpatrick, 91 Mich. 364, 51 N. W. 8i)3. Compare Grim v.
Uobinson, 31 Neb. 540, 48 N. W. 388.

i«3 Sandbom v. Sturtevant, 17 Me. 200. Et vide Huling v. Henderson, 161
I»a. St. 553, 29 Atl. 276.

184 Compare Stanley v. Gaylord, 1 Cush. 536, Hyde v. Noble, 13 N. H. 494,
and Galvin v. Bacon, 11 Me. 28, with Pierce v. Vandyke, 6 Hill, 613.

i«5 Cate V. Cate, 44 N. H. 211.

i«o Capel V. Lyons (City Ct. N. Y.) 20 N. Y. Supp. 49; Inderlied v. Whaley,
65 Hun, 407, 20 N. Y. Supp. 183; Kisseoker v. Monn, 36 Pa. St. 313; Abbott
V. Wood, 13 Me. 115; Kiddle v. Brown, 20 Ala. 412; Juchter v. Boehm, 67
Ga. 5:{9. No permanent Interest in land, even by easement, can be created
by parol license, but such license Is a protection as to anything properly done
under it before revocation, although not where the act Is negligently done, to
plaintiff's damage. Selden v. Delaware & H. Canal Co., 29 N. Y. 634. .

1*7 Ackroyd v. Smith, 10 C. B. 164; Gronendyke v. Cramer, 2 Ind. 382;
Carleton v. Redington, 21 N. H. 291; Buggies v. I^esure, 24 Pick. 187; Harris
V. Gllllngham, 6 N. H. 9; Paine v. Northern Pac. R. Co., 14 Fed. 407; Reln-
miller v. Skidmore, 7 Lans. 161; Jackson v. Babcock, 4 Johns. 418; Menden-
hall V. Klinck, 51 N. Y. 246; De Haro v. U. S., 5 Wall. 599; Blaisdell v. Rail-
road, 51 N. H. 483.

CIu 10] TRESPASS. 683

ing shoii: of an easement, which is not subject to revocation at
^.|]] 168 rpjjg holder of a general admission ticket to a theater seems
to have only a license revocable at will, and that on ejection the
holder muRt sue on contract.^'** The revocation of a license, like
that of a gi'ant, may either be by express words or by any act "suf-
ficiently signifying the licensor's will. If a man has leave and li-
cense to pass through a certain gate, the license is as effectually re-
voked by locking the gate as by further notice.'' ^^* In general, a
mere use of land by a licensor in a manner incompatible with the
license, terminates it without notice.*^^ It is terminated by a trans-
fer of the property ^^* on or by the death of the licensor.^^^

i«« Shirley v. Crabb (Ind. Sup.) 37 N. E. 130. Thus, the facts that the
owner once oraUy consented to the construction of the sewei- which polluted
a stream running through his farm, and that the village went to considerable
expense towards constructing it before suit was begun, do not estop him from
asking an Injunction, since such consent constitutes a mere license, revocable
at will. Village of Dwight v. Hayes, 150 lU. 273, 37 N. E. 218 (49 111. App.
530, aflarmed). Et vide Bohn v. Hatch (Super. Buff.) 15 N. Y. Supp. 550; GUes
V. Simonds, 15 Gray, 441; Houston v. Laffee, 4U N. H. 505; Carleton v.
Redlngton, 21 N. H. 291; Hetfleld v. Central R. Co., 29 N. J. Law, 571; Kim-
baU V. Yates, 14 111, 464; Jamieson v. Mlllemann, 3 Duer, 255; Duinneen v.
Rich, 22 Wis. 55Q; White v. Manhattan Ry. Co., GS Hun, 034, 18 X. Y. Supp.
396; Giles v. Simonds, 15 Gray, 441; Burton v. Scherpf, 1 Allen, 133; Allen
V. Flske, 42 Vt. 462; Eckerson v. Crippen, 110 N. Y. 585, 18 N. B. 443;
Owen V. Field, 12 Allen, 457; Kremer v. Railway Co.. 51 Minn. 15, 52 N. W.
977; Cronkhite v. Cronkhlte, 94 N. Y. 323; Fargis v. Walton, 107 N. Y. 398,
14 N. E. ;?03; Totel v. Bonnefoy, 123 lU. 653, 14 N. E. 687; Howe v. Scaring.
6 Bosw. 354; Lake Erie & W. Ry. Co. v. Kennedy, 132 Ind. 274. 31 N. E.
i^43; Kayner v. Nugent, 60 Md. 515; Parish v. Kaspare, 109 Ind. 586, 10 N.
E. 109.

ifl» Wood V. Leadbitter, 13 Iklees. & W. 838; Hyde v. Graham, 32 Law J.
Exch. 27. Wood v. Leadbitter involved a general admission ticket. By an-
alogy to the i-ule as to lodgere, a license to occupy exclusively a particular
seat would seem to amount to a demise for the time of the particular seat,
and therefore not be revocable. Clerk & L. Torto, 278, note C.

iTo Pol. Torts, § 308.

171 Simpson v. Wright, 21 111. App. G7; Wilson v. Itailway Co., 41 Minn. 56,
42 N. W. 600; Johnson v. Skillman, 20 Minn. 95, 12 N. W. 140.

172 As by a conveyance of the land. Harris v. Gillingham, 6 N. H. 9;
Drake v. Wells, 11 Allen, 141; Cook v. Stearns, 11 Mass. 5.'53; Foot v. New

173 Putney v. Day, 6 N. H. 430; Eggleston v. New York & H. R. Co., 35
Barb. 162; Carter v. Harlan, 6 Md. 20; Jenkins v. Lykes, 19 Fla. 148.

684 WRONGS Td POSSESSION AND PROPKRTY. [Ch. 10

There is an important distinction between a license and a license
coupled with an interest which becomes a grant. '^License under
seal (provided it be a mere license) is as revocable as a license by
parol; and, on the other hand, a license by parol coupled with a
grant is as in-evocable as a deed, provided only that the grant is of
a nature capable of being made by parol." ^^* A license is coupled
with an interest w^here the person obtaining a license to do a thing-
also acquires a right to the possession and control of the property
with which the license is connected. In such cases the authority
conferred by the license is not merely a permission, but amounts to
a grant, and may be assigned to a third person.*^*

If the interest to which the license is annexed is an interest itt
the lands itself, as to go upon the lands to take the profit or enjoy
an easement, and the license is in due form, it is irrevocable. Doubt

Haven & N. Co., 23 Conn. 214; Seidensparger v. Spear, 17 Me. 123; Carter v.
Harlan, 6 Md. 20; Prince v. Case, 10 Conn. 375; Jenkins v. Lykes, 19 Fla.
148; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 2 N. W. 639; Bridges v.
Purcell, 1 Dev. & B. 492; Giles v. Simonds, 15 Gray, 441; Dark v. Johnston^
55 I»a. St. 1^; Whitaker v. Cawthome, 3 Dev. (N. C.) 389; Houx v. Seat,.
26 Mo. 178.

174 »*A license creates no estate in lands. It is a mere power or authority
founded on personal confidence, not assignable, and revocable at pleasure un-
less subsidiary to a valid grant, to the beneficial enjoyment of which its exer-
cise Is neces.sary, or unless executed under such circumstances as to warrant
the interposition of equity. This is the result of the best considered cases.
The doctrine of the early cases which converted, and executed license into an
easement is now generally discarded as being *in the teeth of the statutes of
fiuuds.* • • ♦ In cases where the license Is connected with a valid grant,
as of chattels or fixtures upon the land of the licensor susceptible of being re-
moved, it is subsidlai-y to the right of property, and Irrevocable to the extent
necessary to protect the licensee, and saves to him the riglit of entry,— the
right of possession following the right of property." Vanderburg, J., In John-
son V. Sklllman, 29 Minn. 95-97, 12 N. W. 149, and cases there cited; Miller
V. Railroad Co., 6 Hill, 01, 2 Am. Lead. Cas. (5th Ed.) 576; Krenier v. Rail-
way Co., 51 3kllnn. 15, 52 N. W. 977; Wood v. Leadbltter, 13 Mees. & W. S'iS;
Thomas v. SoitcU, Vaughan, 330. Et vide Lee v. Stevenson, El., Bl. & El. 512;
Nettleton v. Slkes, 8 Mete. (Mass.) 34; Heath v. Randall, 4 Cush. 195.

17 5 Sterling v. Warden, 51 N. H. 217. A person having an Irrevocable
license to enter on the land of another, and there do an act, may use such
force as is required for the purpose, without being liable to an action. Lam-
bert V. Robirwon, 162 Mass. 34, 37 N. E. 753.

^h. 10] TRESPASS. 685

has been expressed, however, as to whether a license can be so an-
nexed to an interest in mere personal property as to become irrev-
ocable. In Vin. Abr.^^® it is said that "when a man bails goods
to ar other to keep, it is not lawful for him, though the doors are
open, to enter into the house of the bailee and to take the goods;
but he ought to demand them; and if they are denied, to bring writ
<f detinue and to obtain them by law." But it has been held that
where one who has cut hay belonging to another, and put it into
the latter's barn, obtains and carries away the hay, the owner can-
not revoke the license so as to prevent it.*^^ However, even if the
license be not actually coupled with the grant, but be so far exe-
cuted as to induce the belief that there has been a grant, and the
defendant has expended considerable money in making permanent
improvements, induced by the silence of the plaintiff to believe the
license to be permanent, it has been held to be irrevocable. Thus, in
a celebrated English case, defendant gave verbal permission to run
a water coui'se through his land. This was constructed at a great
cost, and was used for nine years. The defendant cut the water
off but was restrained from obstructing its flow by an injunction.^''*
Where the owner of land gives parol permission to a railroad com-
pany to enter thereon and construct its roadbed, such license is rev-
ocable only so long as it is executory; and after the company has
43pent large sums of money in pursuance thereof in the construction
of its roadbed, such license cannot be revoked.^ ^® On the other
hand, the principle is enforced that a license is revocable even

ITS "Trespass," 20 Hen. VI., p. 4, pi. 12. Et vide 9 Edw. IV., p. 35, pi. 10;
Wood V. Mannley, 11 Add. & E. 34.

177 White V. Elwell, 48 Me. 300. And generally wheuover a license amounts
to a legal grant it is irrevocable. Bracken v. Rushville & V. G. R. Co., 27 Ind.
S46; ColUns Co. v. Marcy, 25 Conn. 239; Rogers v. Cox, 96 Ind. 157; Bing-
liam V. Salene, 15 Or. 208, 14 Pac. 523; Nettieton v. Sikes, 8 Mete. (Mass.) 34;
Claflin v. Carpenter, 4 Mete. (Mass.) 580; Hetfleld v. Central R. Co., 29 N. J.
Law, 571; Lewis v. McNatt, t35 N. C. 63; Goflf v. Oberteuffer, 3 Pliila. 71;
Douglas V. Shumway, 13 Gray, 498.

i7 8Feltham v. Cartwright, 5 Bing. N. C. 509. A license executed is not
countermandable. See Patricia v. Colerlck, 3 Mees. & W. 483; Wood v. Man-
ley, 11 Adol. & E. 34.

179 Messlck V. Midland Ry. Co., 128 Ind. 81, 27 N. E. 419; Heath v. Ran-
daU, 4 Cush, 195; Saucer v. Keller (Ind. Sup.) 28 N. E. 1117; Cook v. Stearns,

686 WRONGS TO POSSESSION AND PROPERTY. [Oh. lO

though the licensor permits improvements to be made. This has
been applied, for example, to the occupation of "a milling district"
by railroad tracks.* ••

Liherum Tenementum,

The plea "liberum tenementum" (that it is the defendant's land)
raises the question of title. A person who has the freehold and a
right to possession of the land may, by a peaceable entry upon the
land, acquire sufficient possession of it to enable him to maintain an
action for trespass against any person who, being in possession at the
time of his entry, wrongfully continues upon the land.* The per-
mission of the owner to a third person is a sufficient license for a
peaceable entry.f A person in possession, even if not legally entitled

11 Mass. 533; Clioever v. Pearson, 10 Pick. 2GG; Rii;r.:;les v. Losui-e, 24 Pick.
187; Claflln v. Carpenter, 4 Mete. Olass.) 580; Smith v. Benson, 1 Hill, 176;
Sterling v. Warden, ;'! N. II. 217; Yale v. Seeley, 15 Vt 221; Arrington v. Lar-
rabee, 10 Cusli. 512; Suowden v. Wllas, 19 Ind. 10; Ameriscoggin Bridge Co.
v. Bragg, 11 N. H. 102; Stephens v. Benson, 19 Ind. 307; liong v. Buchanan*
27 Md. 502; Cook v. Pildgen, 45 Oa. 331; Lee v. Mcleod, 17 Nev. 103; Wick-
ersham v. Orr, 9 Iowa, 253; Gibson v. St. Louis A. & M. Ass'n, 33 Mo. App.
165; Rhodes v. Otis, 3:5 Ala. 578; (Jrimshaw r. Belcher, 88 Cal. 217. 26 Pac. 84;
Flickinger v. Shaw, 87 Cal. 126, 25 Pac. 268; Wilson v. Chalfant, 15 Ohio, 248;
Reriok v. Keni, 14 Serg. & R. 267; Veghte v. Raritan, etc., Co., 19 N. J. Eq,
142; Rislcn v. Brown. 73 Tex. 135, 10 S. W. 661; Clark v. Glldden, 60 Vt
702, 15 Atl. 358; Lane v. Miller. 27 Ind. .534. A parol license to divert part
of the water of a stream cannot be revoked after the licensee has expended
money and labor In puraiiance of the license. McBroom v. Thompson (Or.) 37
Pac. 57. After a citj'^ has given a license to place awnings over the side-
walk, it cannot neeillessly revoke it until the licensees have enjoyed it suffi-
ciently long to give them a fair return for their outlay. City Council of Au-
gusta V. Burum, 93 Ga. 68, 19 S. E. 820.

i«o Jackson & Sharp Co. v. Philadelphia, etc., R. Co., 4 Del. Ch. 180; Min-
neapolis Mill Co. V. Minneapolis & St, L. Ry. Co., 51 Minn. :501, r^H N, W. 6:^9;
Lake Erie & W. R. Co. v. Michener. 117 Ind. 41J5, 20 N. E. 254; Wllllama v.
Morrison, 32 Fed. 177; Kivett v. McKelthan, 90 N. C. 106; Woodward v.
S(H>ley, 11 111. 157; St. Um\s Stock Yards v. Wiggins Ferry Co., 112 111. 384;
Ketdium v. Newman, 116 N. Y. 422, 22 N. E. 1052.

• Ball, Torts & Cont. 19; Butcher v. Butcher, 7 Barn. & C. 399.

t Hey V. Moorhou.'^e, 6 Blng, N. C. 52: Chambers v. Donaldson, 11 East»
65; Sharon v. Wooldrick, 18 Minn. 3.54 ((Jll. 325). >

Ch. 10] TRESPASS. 687

to it, may have trespass against a wrongdoer, but not against the
rightful owner.J Indeed, by statute, the owner may in the same ac-
tion recover possession and damages. ft It is required that plaintiff
must have re-entered before he can maintain his action.|| Yet it
would seem that it is not a valid objection that proceedings in error
upon ejectment are pending.tt

Originally, if a man had a right to the possession of lands, he might
enter and take possession by force of arms. In 1381, by the statute
of 5 Rich, n, c. 7, it was provided "that none from henceforth shall
make an entry into any lands or tenements but in case where entry
is given by the law, and in such case not with a strong hand nor
with a multitude of people, but only in a lisible, aisie, and peisable
manner." Tliis statute has in substance been re-enacted in all parts
of the United States. Therefore, if a claimant of real estate out
of possession resorts to force or violence amounting to a trespass
of the person, to obtain possession from another claimant who is in
peaceable possession, the party using such force and violence is
liable in damages, without regard to legal title or right of posses-
sion.|| II If he commit a breach of the peace, the state only could
prosecute him therefor.ftt The statute, however, is not inconsistent
with the right of the owner of the premises to make peaceable en-
try without the use of force or intimidation, as by means of a key.JJt-
When the rightful owner has also the right of possession, he has the
right to enter upon his own land peaceably; and if his entry is re-
sisted by force, he may, it seems, repel force by force, and, although

t Beddall v. Maltland, 17 Ch. Div. 174; Gunsolus v. Termer, 54 Wis. 630,
12 N. W. 62.

tt Raj^mond v. Andrews, 6 Cush, 265; lieland v. Tousey, 6 Hill, 328.

II King V. Baker, 25 Pa. St. 186; Tonj^ue v. Nutwell, 31 Md. o02; CaldweU
v. Walters, 22 Pa. St. 378; Fry v. Branch Bank at Mobile. 16 Ala. 282: Car-
son V. Smith, 1 Jones (N. C.) 106; Stancill v. Calvert, 63 N. C. 616.

tt Donford v. EUys, 12 Mod. 138; Wilkinson v. Kirby, 15 C. B. 430; Har-
nett v. Earl of Guildford, 11 Exch. 19.

11 II Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286.

ttt I-'OW V. Elwell, 121 Mass. 309.

ttt Livingston v. Webster, 2() Fla. 325, 8 South 442; Fort Dearborn Lodge
V. Klein, 115 111. 177, 3 N. E. 272; Lee v. Town of Mound Station. 118 lU.
304, 8 N. E. 759; Gage v. Hampton, 127 111. 87, 20 N. E. 32.

688 WRONGS TO POSSESSION AND PROPKRTY. [Cll. 10

lie may be liable civilly and criminally for assault^ he is not responsi-
ble for damages in trespass.|| || ||

Easement or Sperud Property,

A person may justify his trespass to land by showing that he has
a right of way over such land. Although the premises to which the
right of way is an appurtenant may be in the occupation of the de-
fendant, the right of way is nevertheless constructively in the occu-
pation of the defendant; so he may use it for any purpose con-
nected with his rights as a landlord.^** This is true of a private
right of way, so far as where access and use is allowed by the terms
of the grant,^®^ or by use.**^ In England, a right of way may exist

II !1 II 1 Washb. Real Prop. § aiK?: Jones v. .Toues. 31 Law J. Exch. 506; Turner
V. Meyraott. 1 Binjr. 158: Butcher v. Butcher, 7 Barn. & C. 399; Browne v.
Dawson, 12 Adol. & E. 624; Lows v. Tellford, 1 App. Cas. 414; Blades v.
Hlffffs, 10 C. B. (N. S.) 713; Yoates v. Allin. 2 Dana, 134; t>avls v. Burrell,
10 C. B. 821-825; Burling v. Read, 11 Q. B. 904; Davison v. Wilson, Id. 890;
Harvey v. Bryd/?es. 14 Mees. & W. 437; Lyon v. Falrlwnks, 79 Wis. 455, 48
N. W. 492; Manning v. Brown, 47 Md. 506; Hoffman v. Harrington, 22 Mich,
52; Sterling v. Warden, 51 N. H. 217; Krevit v. Meyer, 24 Mo. 107: Todd v.
Jackson, 26 N. J. Law, 525; Hoots v. Graham, 23 111. 81. But see Harding
V. Sandy, 43 111. App. 442; Ostatag v. Taylor, 44 111. App. 469: Twombly v.
Monroe, 136 Mass. 464; Dustin v. Cowdry, 23 Vt. 631. Et vide 3 Bl. Conim.
214; 1 Chit. Gen. Prac. 64<j; Parsons v. Brown, 15 Barb. 590; Newton v. Ilar-
land, 1 Man. & G. 644; Roeder v. Pm-dy, 41 111. 279; cases collected in Frazier
V. Caruthers, 44 111. App.. at page 62. One in possession of immovable projierty
may maintain trespass against the lawful owner for unlawfully and forcibly
disturbing his possession. Nicol v. Illinois Cent. R. Co., 44 La. Ann. 816, 11
South. 34. And see Green v. Hammock (Ky.) 16 S. W. 357. Generally, as to
when action of forcible entry and detainer lies, see Cain v. Flood (Com. PI.)
14 N. Y. Supp. 776; Giddens v. Boiling, 92 Ala. 586, 9 South. 274; James v.
Miles, 54 Ark. 460, 16 S. W. 195; Peddicord v. Kile, 83 Iowa, 542, 49 N. W. 997.

i«i Edwards v. Halinder, Poph. 46.

i«2 Watts V. Kelson, L. R. 6 Ch. App. Cas. 169; United Land Co. v. Great
Eastern Ry., L. R. 10 Ch. App. Cas. 582. Compare Newcomen v. Coulson, L. R.
5 Ch. Div. lliS. Where, by detnl In 1630, a sufficient way leave wds granted to
a collieiy, the owners were allowed, 200 years afterwards, to adapt the way
to the improvements of the age. Dand v. Klngscote, 6 Mees. & W. 174, as
expressed by Mallu.*^, V. C, in 5 Ch. 139. Compare Finch v. Great Western
Ry. Co., 5 Exoh. Dlv. 254, with Skull v. Glenister, 16 C. B. (N. S.) 81.

188 Cowling V. Hlgginson, 4 Mees. & W. 257; Williams v. James, L. R.
2 C. P. Cas. ."577; Wimbledon V. Dixon. 1 Ch. Div. 371; Dare v. Heathcote,
25 L. J. Exoh. 2 15. But proof of a driveway, by prescription, of one kind of

Ch. 10] TRESPASS. b89

by custom in favor of a limited proportion of the public, as a right
of way to church in favor of the inhabitants of a particular par-
ish.*** Xo action lies for passing or repassing ^^"^ on a public way.
An individual cannot ordinarily maintain an action caused by ob-
structing a highway unless he suffers some private, direct, and ma-
terial damages beyond the public at large, as well as damages other-
wise irreparable.* *• An injunction will, however, lie at the instance
of an abutting property owner to restrain the construction of an
elevated road, where no law authorizes its construction.*®^ It is not
a trespass to open a swinging window over a street.*®® If, however,
a highway be used for purposes foreign to its dedication, the owner

animals, is evidence of a right to drive otlier kind of animals. Ballard v.
Dyson, 1 Taunt. 279. But see Lawton v. Ward, Ld. Ilaym. 75; Howell v.
King, 1 Mod. 190. An action will lie to a private individual for obstruction
to a private way, as to any other easement. Williams v. Esling, 4 Pa. St.
486. Where a person has a right of way for logging purposes, and defend-
ant hauls logs over it for him, the fact that other persons have an interest
in the logs does not make defendant a trespasser. Robinson v. Crescent City
MUl & Transp. Co., 93 Cal. 316, 28 Pac. 950.

18* Poole V. Huskinson, 11 Mees. & W. 827; Gatewai-d's Case, 6 Re-
porter, 59b.

185 Dovaston v. Payne, 2 H. Bl. 527.

186 Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Bq. 380, 20 Atl. 859; Bur-
lington Gaslight Co. V. Burlington, C. R. & N. Ry. Co. (Iowa) 59 N. W. 292;
Morris & E. R. Co. v. Newark Pass. Ry. Co., 51 N. J. Eq. 379, 29 Atl. 184.
A civil action to abate a public nuisance constituting an obstruction to a
highway-, and to enjoin its maintenance, may be maintained by a town in
its own name. Towpship of Hutchinson v. Filk, 44 Minn. 255, 47 N. W.
255. A city in which is vested the fee of its streets, in trust for the public,
has a right of action against one who mines .coal underlying such street,
without its consent, for the full value of the coal so mined, though the re-
moval of the coal does not affect the use of the land for streets. Union
Coal Co. V. City of La Salle, 136 111. 119, 26 N. E. 506; Upham v. Marsh, 128
Mass. 546; Weld v. Brooks, 152 Mass. 297, 25 N. E. 719; Conklin v. Old Colony
R. Co., 154 Mass. 155, 28 N. E. 143; Nisley v. HaiTisburg, P. Mt. J. & L. R. Co.,
1 Pears. 23; Bills v. Belknap, 3G Iowa, 583; Matter of New York Catholic
Protectory, 77 N. Y. 342; Bissell v. Collins, 28 Mich. 277; Griswold v. Bay
City, 35 Mich. 452; City of Delphi v. Evans, lii\ Ind. 90; Hovey v. Mayo, 43
Me. 322.

187 Potts V. Quaker City El. R. Co., 161 Pa. St. 396, 29 AtL 108; Earll t.
City of Chicago, 136 111. 277, 26 N. E. 370.

188 0*Linda v. Lothrop, 21 Pick. 292.

LAW OF lX)RT8--44

690 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

of the fee has constructive possession, so far that he may maintain
trespass for such abuse. Thus, trespass will lie on the part of abut-
ting owners for erecting telephone poles on a highway.^ ■• So tres-
pass lies for stopping in front of a man's house and using towards
him abusing and insulting language.^** What would otherwise be
a trespass may be justified by various easements of other descrip-
tions.**^^ The right conferred by an easement includes incidentally
the privilege to enter upon lands to repair the subject-matter of the
easement.*^*

SAME—REMEDIES.

217. Remedies for trespass may be —

(a) Self-help;

(b) Injunction;
(e) Damages. ^^

The remedy for a trespass, as we have seen, may be self-help; as
where possession of lands or chattels is regained by force, or a fresh

i8» Board of Trade Tel. Co. v. Bamett, 107 lU. 507.

i»o Adams v. Rivers. 11 Barb. 390. So for shooting at game on tlie hlgli-
way. Reg. v. Pratt. 4 El. & Bl. 860. The public liave no right of holding
public meetings in a public thoroughfare. Ex parte Tjewis, L. R. 21 Q. B.
Dlv. 191. And, generally, see Lade v. Shephard, 2 Strange. 1004; Eastman
T. Richmond Highway Board, L. R. 7 Q. B. Cas. 75; Blundell v. Catterall, 5
Bam. & Aid. 268; Every v. Smith, 26 IjSlw J. Exch. 344; Beardslee v. French,
7 Conn. 125; New Haven v. Sargent, 38 Conn. 50; Fisher v. Rochester, 6
Lans. 225; Lyman v. Hale, 11 Conn. 185.

101 To hang di-ying lines: Drewell v. Towler, 3 Bam. & Adol. 735. To
erect a signboard: Hoare v. Metropolitan Board of Works. L. R. 9 Q. B.
297; Moody v. Steggles, L. R. 12 Ch. Dlv. 261; Francis v. Haywood, L. R.
•22 Ch. Div. 177. To dig a ditch: Dorris v. Sullivan, 90 Cal. 279, 27 Pac 216;
Dexter v. Riverside & O. Mills. 61 Hun, 610, 15 N. Y. Supp. 374. A water
right: Spargiu* v. Heard, 90 Cal. 221, 27 Pac. 198; Riverdale Park Co. v. West-
cott, 74 Md. 311, 22 Atl. 270.

102 Pomfret v. Ricroft, 1 Saund. 321.

103 An action may be maintained for a trespass on land though no actual
damage has been suffered, since repeated trespasses might be used as evi-
dence of title; and hence the maxim **de minimis" does not apply. Bragg
V. Lara way, 65 Vt. 673, 27 Atl. 492. In an action for trespass on land, it
appeared that from 60 to 100 of defendant's sheep went on plaintiff's land
a number of times; that they were on the land about four weeks; that they

Ch. 10] TRESPASS. B91

entry is made on a trespasser, or where the right of distress *** and
distress damage feasant is exercised.

An injunction will be issued by the court, on a proper showing
for equitable interference. Good title in the plaintiff and insolvency
of the trespasser have been held sufficient*** An injunction will lie
to restrain a continued trespass when threatened,* *• or against a
I>ermanent trespass.**^ And, generally, wherever there is a proba-
bility of irreparable injury, for which there can be no adequate pe-
cuniary compensation, or where otherwise a multiplicity of suits
cannot be prevented.* •• On the other hand, where the injury can

broke into plaintiff's wheat field and meadow; that plaintiff only cut 10
loads of hay from the part of the meadow on which the sheep were, while
14 loads were had from the part of the person who cut the hay on shares.
Held, that plaintiff was entitled to recover substantial damages, and the
rule that a verdict for defendant in a justice court will not be reversed
merely to enable plaintiff to recover nominal damages does not apply. Phil-
lips V. Oovell, 79 Hun, 210, 29 N. Y. S. 613. As between trespass and breach
of covenant, see Hill v. Bartholomew, 71 Hun, 453, 24 N. Y. Snpp. 944.

104 Talbot V. New York & H. R. Co., 78 Hun, 473, 29 N. Y. Supp. 187; ante,
p. 353, "Injunction under Remedies."

i»5 Hanly v. Watterson, 39 W. Va. 214, 19 S. B. 536. And, generally, see
Baltimore Belt R. Co. v. Lee, 75 Md. 596, 23 Atl. 901; Whitlock v. Con-
sumers' Gas Trust Co.. 127 Ind. 62, 26 N. E. 570; Ashurst v. McKensie, 92
WaL 484, 9 South. 262; Gilchrist v. Van Dyke, 63 Vt 75, 21 Atl. 1099.

i»e Murphy v. Lhicoln, 63 Vt. 278, 22 Atl. 418.

i»T Miller V. Lynch. 149 Pa- St. 460, 24 Atl. 80. As to protection of water
and riparian rights, see Carpenter v. Gold, 88 Va. 551, 14 S. E. 329; Lathrop
V. Haley, 81 Iowa, 649, 47 N. W. 878; Cedar Lake Hotel Co. v. Cedar Creek
Hydraulic Co., 79 Wis. 297, 48 N. W. 371. As to title to support water
rights, see Wattupa Reservoir Co. v. City of Fall River, 154 Mass. 305, 28
N. E. 257. As to protection of easements by injunction, see Hoosier Stone Co.
V. Malott, 130 Ind. 21, 29 N. B. 412; Cunningham v. Fitzgerald, 63 Hun, 624,
17 N. Y. Supp. 341, and 18 N. Y. Supp. 946; Power v. Klein, 11 Mont. 159, 27
Pac. 513; Bank of State of Georgia v. Porter, 87 Ga. 511, 13 S. E. 650; Walker
V. Emerson, 89 Cal..456, 26 Pac. 968; Town of Marion v. Skillman, 127 Ind.
130, 26 N. B. 676.

>»8 Jerome v. Ross, 7 Johns. Ch. 315, per Kent, C; Anderson v. Harvey's
Heirs, 10 Grat. 386; Wood v. Braxton, 54 Fed. 1005; Lembeck v. Nye, 47 Ohio
St 336, 24 N. E. 686 (riparian rights); McMillan v. Fenell, 7 W. Va. 223;
Moore v. Ferrell, 1 Ga. 7; Erhardt v. Board, 113 U. S. 537, 5 Sup. Ct 565;
EUis V. Wren, 84 Ky. 254. 1 S. W. 440; Natoma Water & Mining Co. v.

01)2 WKOXGS TO POSSESSION AND PROPEKTY. [Ch. 10

be fully compensated by the award of damages, an injunction will
not be issued.^® °

There can be no fixed rule whereby damages for trespass will be
assessed. The extent of the recovery will vary with the right of the
plaintiff. Tlie merest intrusion upon bare possession will entitle at
least to nominal damages, without proof of actual harm."®* The re-
versioner alone may recover for future injury, unless the right of the
person in possession entitle him thereto. Separate actions may be
brought for the same wrong."®* Where a stranger cuts down trees,
a tenant can recover only in respect of shade, shelter, and fruit, for
lie is entitled to no more.-^^ On the other hand, an heir at law can-
not maintain trespass for an injury done to land descended to him
without entry; but after entry, his right of possession relates back,
so as to support an action against a wrongdoer for trespass com-
mitted at an antecedent period."®'

The measure of the damages will also depend upon the nature of

Clarkin, 14 Cal. 544; Tainter v. Mayor. 19 N. J. Eq. 46; SuUivan v. Rabb,
86 Ala. 433, 5 South. 746; Clendenlng v. OhL 118 Ind. 46, 20 N. E. 639; Clark
V. Jeffei-sonvllle, M. & I. R. Co., 44 Ind. 248; Mui-phy v. Lincoln, 63 Vt. 278,
22 Ati. 418; Ward v. Ohio River R. Co., 35 W. Va. 481, 14 S. E. 142; Richards
V. Dower, 64 Cal. 62, 28 Pac. 113; MiUer v. Lynch, 149 Pa. St. 400, 24 Atl. 80;
Gilchrist v. Van Dyke, 63 Vt. 75, 21 Atl. 1099; Yates v. Town of West Graf-
ton, 33 W. Va. 507, 11 S. E. 8; Thompson v. Engle, 4 N. J. Eq. 271; Sara-
toga Co. V. Deyoe, 77 N. Y. 219.

i»o Curtis V. raffj^ett, 47 Kan. 86, 27 Pac. 109; Bierer y. Hurat, 102 Pa.
St 1, 29 Atl. 98; Thomas v. James, 32 Ala. 723; Crown v. Leonard, 32 Ga.
241; New York P. & D. Establishment v. Fitch, 1 Paige, 97; Hatcher y.
Hampton, 7 Ga, 49; James v. Dixon, 20 Mo. 79; Smith v. PettingiU, 15 Vt.
82; Robelling v. First Nat. Bank, 30 Fed. 744; Ewing y. Rourke, 14 Or. 514,
13 Pac. 413; Miller v. Burket, 132 Ind. 469, 32 N. E. 309; Heaney v. Butte &
M. Commercial Co., 10 Mont. 590, 27 Pac. 379; I^tham v. Northern Pac. Ry.
Co., 45 Fed. 721; McCullongh y. City of Denver, 39 Fed. 307; German v. Clark,
71 N. C. 417; West Point Iron Co. v. Reymert, 45 N. Y. 703; Burnley y.
Cook, 13 Tex. 580; Thornton v. Roll, 118 111. 350, 8 N. E. 145.

200 Ante, p. 81.

201 George v. Fisk, 32 N. H. 32-45; Lane v. Thompson, 43 N. H. 320; Recdor
V. Purdy, 41 111. 279; Towno v. Rice, 24 Conn. 350; Starr v. Jackson, 11 Mass.
519; Jackson v. Todd, 25 N. J. Law, 121; Bennett v. Thompson, 13 Ired. 146.

202 Bedingfield v. Onslow, 3 Lev. 209.

208 Barnett v. Earl of Guildford, 11 Kxch. 19.

^^' ^^] TRESFASS.

693

the injury."* The ordinary rule is compensation."' General dam-
ages will also be inferred by tlie law, and spedal damages,"* when
properly pleaded and proved, may be recovered."^ Thus, general
damages will lie for breaking another's close, and special damages
for the use of the property interfered with."^ Where a railroad
company lays its track on lands without the consent of the owner,
it is liable for the difference in the market value of the land im-
mediately before the commission of the injuries, and the market
value of the land immediately afterwards.^®" Such a trespass is a
continuing one, and entitles to successive actions. Accordingly,
prospective damages cannot be recovered.^ ^® Where trees, timber,
stone, and the like are carried away, the owner may adopt the prop-
erty so removed as the measure of his damages, or he may recover
the difference between the value of the land with such property on

ao4 Gllb«t v. Kennedy, 22 Mich. 5, per Christlancy, J. Ami see The Re-
demptorist v. Wenig (Md.) 29 Atl. 607, 6aS, per Robinson, C. J.
aoB Murray v. Mace, 41 Neb. 60, 59 N. W. 387.

20S Such damages as ai*e not the usual consequence of the trespass are
special, and should be specially pleaded and proved, by way of agjrravation.
Dickinson v. Boyle, 17 Pick. 78; McTavish v. CarroU, 13 Md. 429; Sherman
V. Dutch, 16 HI. 283.

«07 Hawthorne v. 'Siegel, 88 CaL 159, 25 Pac. 1114; Fields v. Williams, 91
Ala. 502, 8 South. 808; Jackel v. Reiman, 78 Tex. 588, 14 S. W. 1001; Chi-
cago, K. & W. R. CJo. V. Willi ts, 45 Kan. 110, 25 Pac. 576; Clark v. Bates,
1 Dak. 42, 46 N. W. 510; WaU v. Pittsburg Harbor Co.. 152 Pa. St. 427-4.'i2. 2r»
A*tl. 647; Saginaw Union St Ry. v. Michigan Cent R. Co., 91 Mich. 657, 52
N. W. 49; Cavanagh v. Durgin, 156 Mass. 466, 31 N. E. 643. A reasonable
sum, without proof of special damages, may be recoverwl. Moore y. Smith
(Tex. Sup.) 19 S. W. 781; Harrison v. Adamson, 86 Iowa, 603. 53 N. W. 3;W.
Et vide Cavanagh v. Durgin, 15G Mass. 466, 31 N. E. 643; McArthur y. Corn-
wall (1802) L. R. App. Cas. 75. As to statutory regulations, see St. Croix
Land & Lumber Co. v. Ritchie, 78 Wis. 492, 47 N. W. 658; Oskaloosa Colle^a*
V. Western Union Fuel Co. (Iowa) 54 N. W. 152; Befay v. Whooler, 84 Wis.
135, 53 N. W. 1121.

308 Ward y. Warner, 8 Mich. 508-525; Mc Williams v. Morgan. 75 111. 473.

2o» Chicago, K. & W. R. Co. v. Willits, 45 Kan. 110, 25 Pac. 570.

210 Blesch T. Chicago & N. W. R. Co., 43 Wis. 183; Adam? y. Hastinjrs &
D. R. Co., 18 Minn. 260 (Gil. 236). Compare Town of Troy v. Cheshire R. R.,
23 N. H. 83, to effect that entire damages, rather than damages antorlor to
the commencement of an action, should be recovered. And seo Wooil v. M ch'-
gan Air-Line R. Co., 90 Mich. 334, 51 N. W. 205.

4

•

694 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

or in it, and with such property removed.^** Where the trees are
ornamental, the latter measure of damages may be more advantage-
ous to the owner.**' Under such circumstances, there are virtually
two causes of action, — one for the disturbance of the real estate, and
one to recover the value of property unlawfully converted.'*'

Exemplary damages will be awarded where there are circumstan-
ces of outrage, insult, or willful, wanton, and malicious destruction
of property."* Spite or ill-will is not necessary to entitle to puni-
tive damages in trespass. The intentional doing of a wrongful act
without just cause or excuse is sufficient**** Ratification of a tres-
pass is not a ground for vindictive damages.*** It would seem that
recovery may be had for mental suffering.**^ By the statutes of
many states, double or treble damages are awarded for willful tres-
pass.*" If treble damages are improperly claimed, the plaintiff,

211 Sturges v. Warren, 11 Vt 433; Kolb v. Bankhead. 18 Tex. 229; Foote v.
Merrill, 54 N. H. 490; Wallace v. GoodaU, 18 N. H. 439; Ensley v. Nashville,

2 Baxt. (Tenn.) 144; Harder v. Harder, 26 Barb. 409; Templemore v. Moore,
15 Ir. Cora. Law, 14. In an action for unlawfully cutting timber from plain-
tiff's laDd, the measure of damages is not necessarily the value of the timber,
but may be the depreciation of the market value of the land. Knlsely y.
Hire, 2 Ind. App. 86, 28 N. B. 195.

212 Van Deusen v. Young, 29 Barb. 9.

218 Smith V. Smith, 50 N. H. 212; Wooley v. Carter, 7 N. J. Law, 85;
Thayer v. Sherlock, 4 Mich. 173. Et vide Seely v. Alden, 61 Pa. St. 302.
Post, p. 70G, "Convei-sion."

214 Nagle V. Nicholson, 34 Pa. St 48; Cutler v. Smith, 57 111. 252; Carl! ¥.
Union Depot, etc., Co., 32 Minn. 101, 20 N. W. 80. For maliciously injurinj?
a dog, see Helllgmann v. Rose, 81 Tex, 222, 16 S. W. 931; Jacquay v. Hart-
zell, 1 Ind. App. 500, 27 N. B. 1105. Therefore, where such circumstances
are proved, a verdict of $1,350 will not be set aside as excessive, although the
actual damage proved was only $950. Pearson v. Zehr, 138 111. 48, 29 N. B.
854; Jackel v. Reiman, 78 Tex. 588, 14 S. W. 1001. Compare Negley v. Cowell
(Iowa) 59 N. W. 48. Et vide 3 Suth. Dam. § 1031, note 1, collecting cases. Fur-
ther, as to damages, see Henderson v. Chicago, R. I. & P. Ry. Co., 83 Iowa,
221, 48 N. W. 1029.

218 Trauerman v. Lippencott, 39 Mo. App. 478. Et vide Koester v. Cowan,
37 ni. App. 252.

210 Gnmd v. Van Vleck, 69 111. 478; Rosenkrans v. Barker, 115 IlL 331^

3 N. E. 93.

217 Bonnelll v. Bowen, 70 Miss. 142, 11 South. 791.

«i« Werner v. Files (Iowa) 59 N. W. 18; McDonald y, Montana Wood Co..

Ch. 10] WASTE. 696

upon proper proof, may recover single damages.*** The presump-
tion of law is that the jury, where such treble or double damages are
demanded, gave all the damages authorized by the statutes. This
presumption can be rebutted by showing that the jury gave only
single damages, and this fact must be shown by the verdict. With-
out this there is no power in the court to double or treble the dam-
ages.**® "The fact that property taken by a trespasser has been ap-
propriated to the owner's use by his consent, express or implied, goes
in mitigation." *** The action under the statute is sometimes held
to be for a statutory penalty, — a cause of action which, though aris-
ing from the same subject-matter, is different from that accruing
at common law.***

WASTE— DEFINITION.

218. Waste is an injury done or suffered by the owner of
the present estate which tends to destroy or lessen
the value of the inheritance.**'

14 Mont. 88, 35 Pac. 668; McCruden v. Rochester Ry. Co., 77 Hun, 609, 28
N. y. Supp. 1135, affirming 5 Misc. Rep. 59, 25 N. Y. Siipp. 114; Humes v.
Proctor, 73 Hun, 265, 26 N. Y. Supp. 315.
21 » Von Hoffman v. Kendall, 63 Hun, 628, 17 N. Y. Supp. 713. •

220 Clark v. Sargeant, 112 Pa. St 16, 5 Atl. 44. It is proper to include inter-
est on treble damages on entering judgment against defendant McCloskej
V. Ryder (Pa. Sup.) 21 Atl. 150; Fairchild v. Dunbar Furnace Co., 128 Pa. St.
485, 18 Atl. 443, 444.

221 2 Sedg. Dam. 526. See, also, 1 Suth. Dam. § 157; Huning v. Cliavee
(N. M.) 34 Pac. 44.

222 Mr. Pollock (Torts, p. 322), in course of consideration of costs, where
damages are nominal, refers to the ''common practice of putting up notice
boards with these or the like words, 'Trespassers will be prosecuted accord-
ing to law* (words which are, *if strictly construed, a wooden falsehood*).
♦ ♦ ♦ originally intended to secure the benefits ♦ ♦ ♦ in the matter
of costs. ♦ ♦ ♦ Several better and safer forms of notice are available.
A common American one, *No trespassing,* is as good as any.** An equally
futile proceeding is the common practice of publishing uotices specifying the
AUiount of fine arbitrarily fixed by the owner of the premises for trespassing
"on these grounds.*' The criminal fine is determined by statute. The amount
of damages which may be recovered by civil action is in the discretion of the

jury.

223 Cooley, Torts, § 332. This would appear to be more in concord with the
modem conception of waste than the English definitions. "Waste is the com-

61i6 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

Besides the payment of rent reserved, if any, and the observance
of the covenants of demise, there are other duties imposed on a
tenant towards the landlord or reversioner and on the tenant for
life or f-or years with regard to their remainder-men. The breach
of these duties is waste at common law.*^* It was usual to declare
in case at common law unless there was also a money demand which
might be included in a declaration in assumpsit.^^'* Covenant might
also have lain at common law.^^" The famous statute of Glou-
cester extended the ancient law of waste by the writ of waste.**^
Waste is a wrong depending peculiarly upon the local conditions.
To meet these conditions, many statutory changes have been intro-
duced. Modern cases must be construed in connection with such
statutes.*^® Waste, however intimately allied with, is a wrong dis-
tinct from trespass and from conversion. It pertains to land only,
but trespass may apply to land and personalty; conversion, only to
movable property. In both trespass and conversion, the remedy is
based on the possession, or right of possession;- in waste, the wrong
is inflicted by the person in possession.'^***

mitting of any spoil or destruction in liouses, lands, etc., by tenants, to the
damage of the heir, or of him in reversion or remainder.'* 10 Bac. Abr.
"Waste is any unauthorized act of a tenant of a freehold estate not of In-
heritance, or for any lesser interest, which tends to the desti'uction of the
tenement, or otherwise to the injury of the inheritance." Pol. Torts, p. 285.
22* BaU, Torts, c. 6, p. 56.

225 Govett V. Radnidge, 3 East, 62; 1 Chit. PI. 140, 141.

226 1 Chit. PL 141.

2 27 6 Edw. I. c. 5. See 1 Saund. 323b, note 7.

22 8 For illustrations of statutory changes, see Sullivan y. O'Hara, 1 Ind.
App. 250, 27 N. E. 590; Mcllvain v. Porter (Ky.) 7 S. W. 309; Davis v. Clark,
40 Mo. App. 515; Cuitiss v. Livingston, 36 Minn. 380, 31 N. W. 357; Uni-
versity V. Tuckor, 31 W. Va, 621, 8 S, E. 410. Compare Laws Pa. 1891, No.
179, p. 208.

220 Dodge V. Davis, 85 Iowa, 77, 52 N. W. 2; Cooley, Torts, § 332.

(^h. 10] WASTE. 097

SAME— KINDS OF WASTE.

218. The substance of waste is the unauthorized wrong to
the inheritance, either in the sense of the value or
in the sense of destroying the identity.^ What con-
duct amounts to waste is a question of fact. In
kind it may be-^

(a) Permissive or commissive; and

(b) Liegal or equitable.

220. Permissive waste is merely passive conduct.
22 L Commissive waste is the doing of a willful injury to.
the premises concerned.

Allowing a house to go to ruin by reason of nonrepair is permissive
waste. An action does not lie for such waste against a tenant at
will who has not covenanted to repair,^** nor against a tenant from
year to year.^'* While there is some doubt on the question, it
seems that a tenant for years who has not covenanted to repair
is liable for permissive waste.*^" A tenant for life is liable for siicli
waste.^** But an equitable tenant for life is not^**^ A dowres-^
is not liable for permissive waste, unless the property involved is
such that a prudent owner of the fee would keep in repair to pre-
vent permanent injury to the fee. Therefore, it is not waste to allow
buildings used for housing slaves before the emancipation to re-
main unrepaired thereafter, unless their utility in some other direc-
tion be apparent."* To suffer a gin mill to be dismantled ^" there- •

3>o Jessel. M. R., in Jones v. Ghappell, L. R. 20 Eq. 539-542; Meux v. Cob-
ley [1892] 2 Ch. 253. "Whatever does a lasting damage to the freehold or
Inheritance is waste." 2 Bl. Ck>mm. c. 18, p. 281.

«3i Hamett v. Maltland, 16 Mees. & W. 257.

232 Torriano v. Young, 6 Car. & P. 8; Martin v. Gilham, 7 Adol. & E. 540.
Indeed, in Kentucky an action at law for permissive waste will not lie. Smith
V. Mattingly (Ky.) 28 S. W. 503.

383 Torriano v. Young, 6 Car. & P. 8; Heme v. Bembow, 4 Taunt. 764;
Greene v. Cole, 2 Saund. 252; Woodhouse v. Walker, 5 Q. B. Div. 4(M.

23* Yellowly v. Gower, 11 Exch. 274-294.

23sPowy8 V. Blagrave, 4 De Gex, M. & G. 448; Freke v. Calmady, 32 Ch.
Div. 408.

23« Sherrill v. Connor, 107 N. C. (»0, 12 S. E. 588.

•37 Cannon v. Barry, 50 Miss. 289.

698 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

after is permissive waste. It is also permissive waste to allow a
pasture to be overrun with weeda^^'

The wrong may be committed by tenants at will for life, for a
term of one year, and from year to year. Tenants at will guilty of
{lermissive waste may be treated as mere trespassers.*** The ten-
dency of American cases is to hold a tenant liable for either con-
version or waste, regardless of the duration or origin of his term.***
Thus, a devisee having a life interest, with possibility of shares in
fee, may commit waste.** ^ Cutting down trees on public land is
waste, within the meaning of a statute which provides that where
there are opposing claimants to public land, and one is threatening
to commit on such land waste which tends materially to lessen the
value of the inheritance, and which cannot be compensated by dam-
ages, an injunction will lie to restrain him therefrom.***

So, the receiver of a railroad company who fails to exercise an
option of purchase *** is liable for waste. Many cases arise in the

«8« Clemence v. Steere, 1 R. I. 272.

280 BaU, Torts, 56-58. A tenant at will Is under an implied agreement to
use the premises in a tenant-like manner, and not, by his voluntary aot, un-
necessarily to injure them; and if he places, in a barn hired by him, a weight
apparently and in fact excessive, which causes the bam to fall, he is guilty of
voluntary waste, and is liable therefor upon his implied agreement Ac-
ceptance of rent by a landlord for the full term for which the premises are
let is not necessarily a waiver of his right to damages for breach of the ten-
ant's implied agreement not to commit voluntary waste. Chalmers v. Smith,
152 Mass. 5C1, 26 N. E. 05.
• 140 Boefer v. Sheridan, 42 Mo. App. 226.

2*1 Farabow v. Green, 108 N. C. ^39, 12 S. E. 1003. As to life tenant, see
Smith V. Mattingly (Ky.) 28 S. W. 503; Smith v. Meiser (Ind. App.) 38 N. B.
1092.

2*2 Arment v. Hensel, 5 Wash. 152, 31 Pac. 464. A person who has not the
immediate estate of inheritance, expectant on the termination of the life es-
tate, cannot maintain an action of waste against the life tenant Hatch v.
Hatch, 31 Cin. Law Bui. 57.

2*3 Powell V. Dayton, S. & G. R. Co., 16 Or. :i3, 16 Pac. 86:3, As between
vendor and vendee, see Holniberg v. Johnson, 45 Kan. 197, 25 Pac. 575; Moees
V. Johnson, 88 Ala. 517, 7 South. 146. Waste by a purchaser at foreclosure
sale pendente lite, MltcheU v. Mining' Co.. 75 Cal. 264, 17 Pac. 296; by remain-
der-men, Solomon v. Tarver, 79 Ga. (JOl. 4 S. E. 317; Simms v. Greer, 83 Ala.
263, 3 South. 423; mortgagee, Moriarty v. Ashworth, 43 Minn. 1, 44 N. W.
531; Miner v. Waddiugliam, 91 Cal. 377, 27 Pac. 750. The levy of a distress

Ch. 10] WASTE. 699

United States from tenancies in dower.^** A tenant in dower is im-
doubtedly liable for commissive waste.**' The authorities do not
.igree as to whether a lessee for life or years is liable for waste com-
mitted by a stranger. The English authorities seem to think that
the lessee is presumed to be capable of preventing it. Therefore the
lessor has his action against the lessee for waste, and the lessee has
his action of trespass against the wrongdoer.*** A dowress has
been held not liable for waste committed by third persons without
her consent.**^ The tendency of the law to extend the scope of the
action is apparent in the recognition of the right of the state to pre-
vent commissive waste.*** As to the nature of commissive waste,
the American authorities are neither in harmony with themselves
nor with the English cases. ''While our ancestors brought over to
this country the principles of the common law, these were neverthe-
less accommodated to these new conditions." **"* Accordingly, it is
a question of fact as to what acts constitute waste, having reference
to actually existing conditions, and the finding on such question
will not be disturbed on conflicting evidence.*^** Commissive waste,
as to land, may consist, for example, in the removing of virgin soil,

warrant has not the effect prima facie of satisfying the debt, so as to put on
plaintiff the burden of showing that the property levied on has not been
wasted; and, if defendant claims waste, the burden is on him to prove it
Taylor v. Felder, 5 Tex. Civ. App. 417, 23 S. W. 480. As to liability of
gnardian and ward, see State v. Tittman, 54 Mo. App. 41X).

"4 Ante, p. 697; SherrlU v. Connor, 107 N. C. 630, 12 S. B. 588; Willey v.
Laraway. 64 Vt. 559, 25 AtL 436; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351.

2" Cooley, Torts, § 333; 1 Scrib. Dower, 212-214; 2 Scrib. Dower, 795.

24« Ball, Torts, 59; Regan v. Luthy (Com. PI.) 11 N. Y. Supp. 709.

'*' Willey V. Laraway, 64 Vt. 550, 25 Atl. 436. A married woman is not
liable for waste committed by her husband in his representative capacity as
executor. Lmy v. Menke (Mo. Sup.) 28 S. W. G43.

2*8 State V. Gramelspacher, 126 Ind. 398, 26 N. E. 81; McBride v. Board of
Com*n of Pierce Co., 44 Fed. 17; Caldwell v. Ward, 83 Mich. 13, 46 N. W.
1024, explained hi 88 Mich. 378, 50 N. W. 303.

2*» Gaston, J., in Shine v. Wilcox, 1 Dev. & B. Eq. 631.

>»o Jackson v. Brownson, 7 Johns. 227, followed in Eysaman v. Small, 61
Hon, 618, 15 N. Y. Supp. 288; Shephard v. Shephard, 2 Hayw. (N. C.) 580;
Balleutine v. Poyner, Id. 268; Lambeth v. Warner, 2 Jones, Eq. 165; Craw-
ley T. Timberlake, 2 Ired. Eq. 460; Davis v. Gilliam, 5 Ired. Eq. 308; Dor-

700 WttONGS TO POi^SESSION AND PROPERTY. [Ch. 10

diversion of the course of a stream, destruction of game, fish ponds,
and the like.^°* It is not waste to use the premises in accordance
with good usage and for purposes for which they were manifestly
designed. Thus, the unauthorized digging of clay by a tenant is
waste, where there is nothing in the situation of the premises or
other special circumstances to take the case out of the general
rule.*°^ But, where the work for carrying on the business of mak-
ing brick has been constructed and established, and the business
lawfully undertaken by the owners of the land, it is not waste for a
tenant to continue the business in the customary way.**** On the
same principle, while a tenant may not open new or discontinued
mines or quarries,^** yet he may exhaust mines and quarries oixjned
at the commencement of the estate without committing waste.*** As
to the use of soU in husbandry, it was originally held that any con-
version of land from one species to another, as plowing up wood-
land, or turning arable into pasture land, was waste; but modern
authorities do not bear this out*** Whether such conversion interferes
with the value as a whole, and the sanction of similar usage by
good farmers, are proper considerations for the jury.**^ Putting
all the land into wheat may be waste; so may negligence to observe
the proper rotation of crops.*** The exhaustion of the soil may be

sey v. Moore, 100 N. C. 41. 6 S. E. 270; Hasting v. Crnnckleton. 3 Yeates
(Pa.) 261; Clemence v. Steere. 1 R. I. 272; Wilson v. Edmonds, 24 N. H.
517; Harvey v. Harvey, 41 Vt. 373; Kidd v. Dennlson, 6 Barb. 9; Keelor
V. Eastman, 11 Vt. 293; FJndlay v. Smith, 6 Munf. (Va.> 134.

281 Ball, Torts, 57.

202 Livingston v. Reynolds, 2 Hill, 157.

2 53 Russell V. Merchants* Bank of Lake City, 47 Minn. 286, 50 N. W. 228.
Compare University v. Tucker, 31 W. Va. 621, 8 S. B, 410; Dodge v. Davis,
85 Iowa, 77, 52 N. W. 2. As to when .the liability Is only ex contractu, see
Patureau v. McArdle, 44 La. Ann. 355, 10 South. 782.

2 64 Gaines v. Green Pond Iron Min. Co., 32 N. J. Eq. 86. If coal has been
mined for domestic use, the life tenant may not mine for sale. Franklin Coal
Co. V. McMillan, 49 Md. 549.

2 56 gayers v. Iloskinson, 110 Pa. St. 473, 1 Atl. 308. Compare Grubbs* Ap-
peal, 00 Pa. St 228; McCord v. Oakland Quicksilver »Iin. Co., 04 Cal. 134, 27
I'ac. 863.

266 Pol. Torts, 285.

267 Chapel V. Hull, 60 Mich. 167, 26 N. W. 874
168 Wilds V. Lay ton, 1 Del. Cli. 22a

Ch. 10] WASTE. 701

waste,'"* although mere bad farming is not.^"® CJommissive waste
may affect timber and other products grown on land. With regard
to such products the law will depend largely on the local custom
and on the peculiar condition of the country in which the question
may arise. Thus, in England, where local usage allowed it, taking
'^annual cuttings" was held not to be waste between the tenant for
life and the remainder-man.^"^ While, in England, outside of such
local usage, the tenant could take wood for ordinary use, as for fuel
or for repair, he would be liable for waste if he exceeded what was
reasonable.***^ In this country, cutting valuable forest trees where
there is little woodland on a farm may be waste ;*"^ but it is not
waste to cut timber for necessary repair, — for example, to fence.-**
"Any such strictness as existed in England would be manifestly
unsuited to the condition of things in other parts of this country,
because it would be of some service to the inheritance. In newer
states, where timber is abundant, it might indeed be beneficial to
the inheritance, rather than wasteful, to permit the timber to be
removed; and therefore what is wasteful elsewhere might in tliese
sections of the country be permissible." '•'* Ordinarily, a tenant for

«»• Sarles v. Series, 3 Sandf. Ch. (N. Y.) COl.

««o Richards v. Torbett, 3 Houat. (Del.) 172.

261 Dash wood v. Magnlac [1891] 8 Ch. 306; Honey wood v. Honey wood, L.
R. 18 Eq. 306-309. To eradicate whitethorn is waste, but not to eradicate
blackthorn. Gage v. Smith, Godb. 209.

2«2 2 Bl. Comm. 35; 1 Washb. Real Prop. 129. See McCord v. Oakland
QuicksUver Min. Co., (H Cal. 134, 27 Pac. 863.

203 Powell V. Cheslre, 70 Ga. 357; Hiiddleston v. Johnson, 71 Wis. 336, 37 N.
W. 407. Defendant may be liable to remainder-men for such waste, although
timber was cut under contract of sale with life tenant, and paid for in full.
Dorsey v. Moore, 100 N. C. 41, 6 S. E. 270. Et vide Webster v. Webster, 33
N. H. 18; lister v. Young, 14 R. I. 579; SUva v. Garcia, 05 Cal. 591, 4 Pac.
028; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Moses v. Johnson. 88
Ala. 517, 7 South. 146; Carrington v. Lentz, 40 Fed. 18.

2«4 Calvert v. Rice, 91 Ky. 533, 16 S. W. 351. Compare Den v. Keuney, 5
N. J. Law. 634.

2«5 Cooley, Torts, 333, approved. Pol. Torts, § 28i;; King v. Miller, 99 N. C.
583, 6 S. E. 660; Alexander v. Fisher, 7 Ala. 514; Drown v. Smith, 52 Mc. 141;
(Jardner v. Dering, 1 Paige, 593; Keeler v. Eastman, 11 Vt. 2D3; McGregor v.
Brown, 10 N. Y. 114; Clemence v. Steere, 1 R. I. 222.

702 WRONGS TO POSSESSION AND PROPERTY. [Ch. lO

life may not cut timber simply for the money it will bring; *•• but
it is not waste for the life tenant to cut wood or timber so as to fit
the land for cultivation or pasture conformable to the rules of good
husbandry; and this is so even where the wood or timber so cut is
sold, used, or consumed on the premises.^®^ But the mere fact that
the value of the land is not diminished, or that it may be increased,
is no defense in an action for actual waste.^®*

It is waste to pull down houses, outbuildings, or walls, to remove
wainscots or floors, to build up old windows or doors, or to open
new ones, or to change one species of building into another, — as a
water mill into a wind mill, or a corn mill into a malt mill.-®** The
tearing down of a house is waste, even if it be done for the purpose
of erecting a better one.*'® The measure of damages would be the
diminution of the value of the premises, and not the value of the
building destroyed or removed.*'^ Considerable latitude has been
allowed with respect to the right of the tenement to remove fixtures.
"The rule as to fixtures has always been relaxed more as between
landlord and tenant than as between persons standing in other re-
lations. It has been held that stoves are movable during the term;
grates, ornamental chimney-pieces, wainscots fastened with screws,
coppers, and various other articles." *'*

2«e Dorsey v. Moore (S. 0.) 6 S. B. 270; 1 Washb. Real Prop. 115-128; White
V. Cutler, 17 Pick. 248; Padelford v. Padelford, 7 Pick. 152; Sarles v. Sarles,
3 Sandf. Ch. 601; Jackson v. BrowDSon, 7 Johns. 227; Livingston v. Reynolds,
26 Wend. 115, 2 Hill. 157; McGregor v. Brown, 10 N. Y. 114; Robinson v.
Ivime, 70 N. Y. 147; Van Deusen v. Young, 29 N. Y. 9; Kidd v. Dennison, 6
Barb. 9; Davis v. Gilliam. 5 Ired. Eq. 308.

267 Keeler v. Eastman, 11 Vt 293; Alexander v. Fisher, 7 Ala. 514; Hastings
V. Crunckleton, S.Yeates (Pa.) 261; Williard v. Williard, 56 Pa. St. 119; Drown
V. Smith, 52 Me. 141; Davis v. Gilliam, 5 Ired. Eq. 308; Owen v. Hyde. 6
Yerg. 334; Findlay v. Smith, 6 Munf. (Va.) 134; Appeal of Campbell, 2 Doug.
(Mich.) 141; Jackson v. Brownson, 7 Johns. 227; Van Deusen v. Young, 2a N.
Y. 9; Schnebly v. Schnebly, 20 111. 116; Wilkinson v. Wilkinson, 59 Wis. 557,
18 N. W. 527.

2«8 Rossman v. Adams, 91 Mich. 69, 51 N. W. (585; Moses v. Johnson, 88 AJa.
517, 7 South. 146.

«•» Smyth V. Carter, 18 Beav. 78; BaU, Os. Torts, 57.

270 Dooly V. Stringham, 4 Utah, 107, 7 Pac. 405.

«Ti Stoudenmire v. De Bardelaben. 85 Ala. 85, 4 South. 723.

272Tindal, 0. J., in Grymes v. Boweren, 6 Bing. 437; Elwes v. Maw, S
Ea8t,3&

Ch. 10] WASTE. 703

222. Legal waste is a term used to describe waste for which
there lay a remedy at law. Eqtdtable waste is a
term used to describe waste which was only recog-
nized as such and relieved against in equity.^

When a life estate is given "without impeachment of waste/* the
tenant for life will still be restrained from committing wanton or
malicious waste, such as damaging and destroying buildings or
boundary walls, cutting down wood unfit for timber, or trees grown
for belter or ornament, or destroying a field by carrying away brick
earth.^^* The words "to have and to hold, and to use and control
as the lessee thinks proper, for his benefit during his natural life,'*
import a lease without impeachment for waste. But such words
are not to be treated as importing a license to destroy or injure the
estate, but to do all reasonable acts consistent with the preservation
of the estate which in law might be waste. Such a lease does not
permit the tenant to entirely strip the land of timber, convert it
into lumber, and sell it away from the inheritance.*^*

SAME— BEMEDIES.

223. The ordinary remedies for waste are

(a) An award of damages; or

(b) The issuance of an injunction against the recurrence

of mischief.

Damngen.

Tlie actual damages, where recovery is allowed, are meted out on
the same principles which would govern recovery in trespass, and in
proportion to tlie injury sustained."** One can recover only such

27 8 Fraser, Torts, 54.

»74 Vane v. Barnard, 2 Vern. 738; Bishop of London v. Web, 1 P. Wmg. 528;
2 Bl. Comm. 282, 283; Downshire v. Sandys, 6 Ves. 107. But see Baker v.
Sebright, 13 Ch. Div. 179.

27 5Duneombe v. Felt, 81 Mich. 332, 45 N. W. 1004. As to use of writ of
estrepement. see Hensal v. Wright, 10 Pa. Co. Ct. R. 416. As to forfeiture,
see SulUvan v. O'Hara, 1 Ind. App. 259, 27 N. E, 590. As to appointment of
receiver, see Dunlap v. Hedges, 35 W. Va. 287, 13 S. E. 65G.

*7« 3 Suth. Dam. § 1033, citing Van Deusen v. Young, 29 N. Y. 9; Randall v.
Cleveland, 6 Conn. 328; Shad well v. Hutchinson, 2 Barn. & Adol. 97; Dutro
V. WUson, 4 Ohio St. 101. As to refusal subsequent to commencement of ac-

704 WRONGS TO POSSESSION AND PROI'EKTY. [Ch. 10

damages as affect his expectant estate, and, in general, these dam-
ages are the amount the estate is diminished thereby in value.'^^
The damage may be recovered by a mortgagor or his vendee for acts
of waste committed with a knowledge that the value of the security
will be injured thereby,^^^ even though in its damaged condition it
is of sufficient value to satisfy the mortgage debt.-^' Treble dam
ages are often awarded by statute.^*®

Injunction.

The issuance of an injunction to prevent the commission or con-
tinuance of waste is governed by ordinary equitable principles. A
court of equity will not interfere to prevent by injunction permissive
waste, but will leave the aggrieved party to his remedy at law.*®^
Nor will it grant an injunction against ameliorating or improving
waste, as building a valuable house on the land.*®* In general, it
will not issue unless the injury is so irreparable that damages would
afford no adequate compensation,*" and where there is no adequate

tlon, see Davis v. Clark, 40 Mo. App. 515; Evelyn v. Baddish, Holt, N. P. 543;
Dawson v. Tremalne, 93 Mich. 320, 53 N. W. 1044.

2T7 a suth. Dam. § 1034, note 4; Webb v. Portland Manur^r Co., 3 Sunin.
181), Fed. Cas. Xo. 17,322.

278 Van Pelt v. McGraw, 4 N. Y. 110; Manning v. Monaghan, 23 N. Y. 539;
Wilson V. Maltby, 59 N. Y. 120-129.

27 9 Bryom v. Chapin, 113 Mass. 308. So, as to replevin, Allen v. Butman,
138 Mass. 580; as to trover, Searle v. Sawyer, 127 Mass. 491. Et vide
Waterman v. Mattcson, 4 R. I. 539. Compare Cog^ill v. Millburn Land Co.,
25 N. J. Eq. 27. Generally, as to right of mortgagee to recover, see Adams
V. Corriston, 7 Minn. 450: Malone v. Marriott, 04 Ala. 480; Cooi>er v. Davis,
15 Conn. 550; Plia'nlx v. Clark, 0 N. J. Eq. 447; Ward v. Carp River Iron Co.,
47 :^Iioli. (m, 10 N. W. 109. Timber cut on land, not for consumption, be-
longs to a pnrcliasor of tax title at the period of redemption. Nicklase v.
Morrison, 50 Ark. :>ri:^, 20 S. W. 414.

2S0 SherrUl v. Connor, 107 N. C. 543, 030, 12 S. E. 5SS; Smith v. Mattingly
(Ky.) 28 S. W. 503. As to limitation against an action of waste, see Powell
V. Dayton, S. & G. R. Co., 10 Or. 33, 10 Pac. 803; Danziger v. Silverthau
(Super. Ct. N. Y.) IS N. Y. Supp. 350.

281 Powys V. Blagrave, 4 De Gex, M. & G. 448.

282 Doherty v. Allman, L. R. 3 App. Cas. 709. Compare Miller v. Wadding-
liam, 91 Cal. 377, 27 Pac. 750. But see Smyth v. Carter, IS Beav. 78, per Sir
John Rom illy, M. R.

28a Holnaberg v. Johnson, 45 Kan. 197, 25 Pac. 575; Atkins v. Chilson, 7

Ch. 10] WASTE. 705

remedy at law.*'* An injunction will issue upon threats to commit
waste.*" As between mortgagee and mortgagor, if the waste com-
plained of will diminish the value of the property so as to render
it insufficient or of doubtful sufficiency, it will be restrained by an
injunction,*'* though the mortgage debt is not yet due.**^ It may
issue to restrain injury to the freehold in the nature of waste, be-
tween tenants in common,*" and between a vendor in possession
and the vendee.*'* It will lie on the part of the state, — as, for ex-
ample, to preserve security for taxes.*** The decisions are in con-
flict as to whether an injunction will issue where the title is in dis-
pute.*** An injunction will not lie for use authorized by law.***

Mete. (Mass.) 398; Poindexter v. Henderson, 1 Miss. 176; Terry v. Allen, (V.)
Conn. 530, 23 Atl. 150.

284 A landlord is not entitled to an injunction to restrain a solvent tenant
from cutting and removing fodder from the demised premises, as he lias nu
adequate remedy at law for any injury resulting therefrom. Perry v. Ham-
Uton (Ind.) 35 N. E. 83G. MUls' Ann. 8t. § 2272, part of an act giving the
right to construct reservoirs for certain purposes, by providing that the own-
ers thereof shall be liable for all damages arising from leakage therefrom,
merely affirms a common-law principle, and does not take away the right to
injunctive relief against the filling of a reservoir, where the injuries suffered
therefrom are irreparable. Sylvester v. Jerome, 19 Colo. 128, 34 Pac. 7G0.

285 Whitewater VaUey Canal Co. v. Comegys, 2 Ind. 469; Loudon v. War-
field, 5 J. J. Marsh. 196.

28eMorlarty v. Ashworth, 43 Minn. 1, 44 N. W. 531; Miller v. Wadding-
ham, 91 Cal. 377, 27 Pac. 750.

««7 Cahn V. Hewsey, 8 Misc. Rep. 384, 29 N. Y. Supp. 1107.

«»«Hawley v. Clowes, 2 Johns. Ch. 122; Coffin v. Loper, 25 N. J. Eq. 4^U
Atkinson v. Hewitt, 51 Wis. 275, 8 N. W. 211.

28» An injunction has been granted to restrain quarrying and removing rock,
or removing trees, except nursery stock, by purchaser under contract against
a vendor in possession. Holmberg v. Johnson, 45 Kan. 197, 25 Pac. 575.

2»o Rossman v. Adams, 91 Mich. 69, 51 N. W. 685; Caldwell v. Ward, 88
Mich. 378, 50 N. W. 303.

*»i Compare Preston v. Smith, 26 Fed. 884, McBride v. Board of Com'rs, 44
Fed. 17, and Nevitt v. Gillespie, 2 How. (Miss.) 108, with Arment'v. Hensel.
5 Wash. 152, 31 Pac. 464; Wadsworth v. Goree, 96 Ala. 227, 10 South. 84S;
Kinsler v. Clarke, 2 Hill, Bq. (S. C.) 617; Snyder v. Hopkins, 31 Kan. 557,
3 Pac. 367; Duvall v. Waters, 1 Bland (Md.) 569; Lanier v. Alison, 31 Fed.
100.

*»2 The tenant in dower will not be enjoined from cutting timber to make
rails to put the fences in repair, even though the timber on the farm is very

ZJLW OF TORTB- 45

•

706 WRONGS TO POSSESSION AND PROPERTY. [('ll. lO

The right of an Injunction against waste may be lost by long delay
and practical acquiescence.^"*

CONVERSION— DBPINITIOW.

224. Conversion is an unauthorized act which deprives
another of his property, permanently or for an in-
definite time.**

The law of conversion, as we have seen, was to a great extent de-
veloped through the common-law action on the case, "trover.** The
question which was originally asked was, not whether there was
the substantive wrong, conversion, in a given instance, but whether
trover would lie. Indeed, the remedy and the wrong are now alike
commonly referred to as *'trover and conversion."

The action of trover, according to the original form of declaration,
was applicable only to cases where the plaintiff had lost his goods
and they were subsequently found and appropriated by the defend-
ant Even under common-law practice and pleading, the aver-
ments of loss and finding have long been considered immaterial,
and are not traversable by the defendant*"'* Even in jurisdic-
tions where the code system of pleading is in force, the name is
still applied to the action brought to recover the legal measure of
damages for personal chattels wrongfully converted.***

scarce, for it is the duty and right of the life tenant to reasonably use the
timber for purposes of repair, and such use is no Injury to the remainder-
man. Calvert v. Rice, 91 Ky. 533, 16 S. W. 351; Neel v. Neel, 19 Pa. St
323. So. between cotenants, McCord v. Mining Ck)., 64 Cal. 134, 27 Tac. 863.

283 Ball, Torts, 60.

284 Pol. Toit8, p. 288.

206 Clerk & L. Torts, 167. "We should not allow this nonsensical form of
losing and finding to be extendwl any further." Best, C. J. ("certainly no
great friend to the action of trover"), in Mallalieu v. Laugher. 3 Car. & P.
ri51. The origin of trover. Its distinction from other forms of common-law
actions, and its justification, will be found set forth in Burroughes v. Bayne,

5 Hurl. & N. 296; especially by Martin, B. And, generally, see Glyn v. East

6 W. India Dock Co., 6 Q. B. Div. 475; England v. Cowley, L. R. 8 Exch.
126; Hiort v. Bott, L. R. 9 Exch. 86. For a statutory aclion allied to trover,
see Smith v. Briggs, 64 Wis. 497, 25 N. W. 558; National Transit Co. v.
Weston, 121 Pa. St. 485, 15 Atl. 569.

»•« This is justified, not only because of the historical confusion of the law

Cb. lU] CONVERSION. 707

Trespass and trover, while distinct forms of action, may in many
instances lie for the same wrong, at the plaintifPs option. They

adjective and of tbe law substantive on this point, but also by its avoidaucc
of confusion of tbe tort conversion with the equitable doctiine of conversion.
This chain of reasoning would seem to add cogency to the insistence that
''deprivation" should be used instead of "conversion," as the name descrip-
tive of this species of civU wrong. Complaint in trover should contain: (1)
Allegation of ownership or possession at the time of the alleged wrong. It
need not show nature or evidence of plaintiff's title; it is enough to allege
ownership generally. Reed v. McRill, 41 Neb. 200, 59 N. W. 775; Warren v.
Dwyer. 91 Mich. 414, 51 N. W. lOG; Oberfelder v. Kavanaugh, 21 Neb. 483,
32 N. W. 295; StaU v. Wilbur, 77 N. Y. 158; Swift v. James, 50 Wis. 540, 7 N.
W. 0.">(j; Sturmau v. Stone, 'M Iowa, 115; Keruer v. Boardumn (Com. PI.) 14
N. Y. Supp. 787. A complaint alleging possession of plaintifif is suflicient,
although the Judgment shows title. Rosenthal v. McMaun, 93 Cal. 505, 29
Pac. 121. Property or possession must be Rb^wn at the time of the wrong,
and not at the commencement of the action. Sawyer v. Robertson, 11 Mont.
416, 28 Pac. 456; Smith v. Force, 31 Minn. 119, 16 N. W. 704; Bond v. Mitchell,
3 Barb. 304. (2) A reasonably certain description of property. "All the sa-
loon fixtures on the premises No. 424 M. street," giving city and count>% is suf-
ficient Greenebaum v. Taylor, 102 Cal. 624, 36 Pac. 957. And see Crocker v.
Hopps, 78 Md. 2G0, 28 Atl. 99; Leitner v. Strickland, 89 Ga. 303, 15 S. E.
469. (3) A sufficient allegation of the act of conversion. That defendant
"converted" the propei*ty is an allegation of fact, not of law, and is suffi-
cient, Dnggan v. Wright, 157 Mass. 228, 32 N. E. 159; Johnson v. Ashland
Lumber Co., 45 Wis. 119; or "sold," Edwards v. Sonoma Valley Bank, 59 Cal.
136; Cone v. Ivlnson (Wyo.) 33 Pac. 31, 35 Pac. 933. Pfalntiff need not aUege
particulars. Green v. Palmer, 15 Cal. 412. An allegation as to place is im-
material. First Nat. Bank v. Brown, 85 Tex. 80, 23 S. W. 862. An allegation
of essential elements of conduct constituting conversion is sufficient Cf.
Hatchings v. Castle, 48 Cal. 152, with Triscony v. Orr, 49 Cal. 612. As to de-
mand and refusal, see Holdridge v. Leo, 3 S. D. 134, 52 N. W. 2G5; Schmidt
V. Garfield Nat. Bank, 64 Hun, 298, 19 N. Y. Supp. 252; Proctor v. Cole, GO
Ind. 576; Pugb v. Calloway. 10 Ohio St 488; Kronsclmable v. Knoblauch,
21 Minn. 56. And (4) an allegation of damage. Morlsh v. Mountain, 22
Minn. 564; Washburn v. Mendenhall, 21 Minn. 2^2. It Is usual, but not
necessary, to allege the value of the property. Jones v. Rahilly, 16 Minn. 320
(Gil. 283): Connoss v. Melr, 2 B. D. Smith, 314; Jefferson v. Hale. 31 Ark.
286; Woodruff v. Cook, 25 Barb. 505. Generally, as to complaint, see Howard
▼. Seattle Nat Bank (Wash.) 38 Pac. 1040. Kyle v. Caravello (Ala.) 15 South.
527. As to general denial, see Warnlck v. Baker, 42 Mo. App. 439; Sparks
V. Heritage, 45 Ind. 66; Richardson v. Smith, 29 Cal. 529. As to answers^
generally, see Dubois v. Sistare, 59 Hun, 353, 13 N. Y. Supp. 99; Benedict v.

708 WRONGS TO POSSKSSION AND PROPERTY. [Ch. 10

•

have become largely, if not wholly, interchangeable ••^ as to in-
juries to personal property."* The fundamental distinction be-
tween them is founded on this: Trespass is essentially a wrong
to the actual possessor; conversion is a wrong to the person en-
titled to iramt^diate possession.-^® The actual possessor is fre-

Farlow, 1 Ind. App. IGO, 27 N. E. 307; Louisville & N. R. Co. v. Lawson, 88
Ky. 496, 11 S. W. 511. As to reply, McFadden v. Schroeder, 4 Ind. App. 305.
29 N. E. 491, and 30 N. E. 711. As between trover and remedy for breach of
contract, see Sliea v. Inluibitants of Mllford, 145 Mass. 525, 14 N. B. 769.

«87 innes, Torts, 9; 3 Bl. Comra. 152. Thus, the destruction of property
may be the basis of an action either of trespass or conversion. Pig. Torts,
345. Abuse of license of law, e. g. to drive sheep away from defend-
ant's close, may make trespass ab Initio and enable owner to sue in trover.
Gilson V. Fisl£, 8 N. H. 404. Cf. Brown v. Boyce, 68 111. 294. The distinc-
tion between trespass and conversion may be ver5' material on the ques-
tion of damages. Cltrk & L. Torts, 168, note c. It is well illustrated in
Shea V. Inhabitants of MUford, 145 Mass. 525, 14 N. E. 769. Here property
of the plaintiff was on defendants* land. Defendants requested plaintiff to re-
move it, and upon his refusal so to do, defendants removed it. It was held
that, If plaintiff had the right to occupy the land, which he claimed, the acts
of defendants were wrongful, and they would be liable to him for damages for
breach of contract or for trespass, but not for value of property converted
to their own use. So, in Downs v. Finnegan (Minn.) 59 N. W. 981, a further
difference is well Illustrated. While the plaintiff in conversion may waive
the tort and sue in assumpsit, a trespass is not so convertible. It was accord-
ingly held that, though a naked trespass, creating a liability for damages,
cannot be the basis of an action as on implied assumpsit, where one has
wrongfully quarried stone on the land of another, and converted the same to
his own use so that replevin or trover would lie, the tort may be waived, and
the value of the stone recovered in assumpsit. And see article by Judge
Cooley in 3 Alb. Law J. 141. Further, as to difference between trespass and
conversion, see Stanley v. Gaylord, 1 Cush. 536-553. Thorogood v. Robin-
son, 6 Q. B. 769; Town v. Hazen, 51 N. H. 596; Bushel v. Miller, 1 Strange,
128; Fams worth v. Lowery, 134 Mass. 512.

• 29 8 Trover will not lie for an injury to real estate. But a building may be
converted. Osborn v. Potter, 101 Mich. 300, 59 N. W. 606; Jonsson v. Lind-
strom, 114 Ind. 152, 16 N. E. 400. And if it be wrongfully taken away from
a homestead, such severance does not destroy its exemption from legal pro-
cess. Wylie V. Grundysen, 51 Minn. 360, 53 N. W. 805.

199 That plaintiff's ties are on defendant's right of way does not defeat an
action for conversion. Baker v. Railway Co., 52 Mo. App. 602. Trover will
lie although the property be in the custoily of a court of chancery. Gara-
baldi v. Wright, 52 Ark. 41G, 12 S. W. 875. Indorsee hi blank of note held

Ch. 10] COK VERSION. 709

quently, but not always, the person entitled to immediate posses-
sion. So that trover sometimes may, but does not necessarily, in-
clude trespass.'®**

Conversion differs from negligence in being a breach of an abso-
lute duty, and the result of what is done or omitted at peril; so
that the question of culpability, or want of care, is not an element
of conversion. Such personal fault is of the essence of negli-
gence.'®^ Unlike negligence, it cannot be brought for a personal
injury. The line of distinction between the two is, in actual prac-
tice, by no means always distinct'®^

Conversion is a transitory, as distinguished from a local, wrong.
It has, therefore, been held that trover will not lie, at the suit of the
owner of lands, against a person who removes timber from it under
claim of title, since that would put the title to lands in issue.'®'
Where, however, one has recovered possession of the land in eject-
ment, he may recover in trover for the removal of standing timber
by a person in possession under claim of title.'®* Trover does not
lie to recover money paid by mistake.'®* The owner is not bound
to follow the property converted, although by law he may be en-
titled so to do, but may sue at once for damages. Therefore, a
mortgagee whose mortgaged property has been unlawfully sold is

as coUateral security may sue indorser, who has note for collection in tro-
ver. Carter v. Lehman, 90 Ala. 126, 7 South. 735. Where plaintiff In trover
claims under a chattel mortgage, such special property must be alleged; a
general allegation of a right to possession not being suflflcient. Kennett v.
Peters, 54 Kan. 119, 37 Pac. 999. See Axford v. Mathews, 43 Mich. 327, 5
N. W. 377; Foster v. Mhiing Co., 68 Mich. 188, 36 N. W. 171; Stevenson v.
Fitzgerald, 47 Mich. 166, 10 N. W. 185.

soo Fraser, Torts, 62; Lexington & O. Ry. Co. v. Kidd, 7 Dana, 245.

•01 Poet, 821, "Negligence."

«o« Post, p. 814, "NegUgence." And see Graves v. Smith, 14 Wis. 5; Piatt v.
Tuttle, 23 Conn. 233; Williams v. Geese, 3 Bing. N. C. 849.

80S i^high Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law»
350. 26 Atl. 920; Washburn v. Cutter, 17 Minn. 861 (Gil. 335); Nash v. Sul-
livan, 32 Minn. 189, 20 N. W. 144.

80* WUson V. Hoffman, 93 Mich. 72, 52 N. W. 1037. But timber has been
regarded as personalty under such circiimstanoes. Brooks v. Rogers, 101 Ala.
HI. 13 South. 386.

•05 Muskegon Booming Co. v. Hendricks, 89 Mich. 172, 50 N. W. 799.

710 WUONGS TO POSSESSION AND PROPERTY. [Ch. 10

not compelled to pursue the lien to which he may be entitled, but
may recover in trover.^®*

SAME— TITLE TO MAINTAIN.

226. To entitle him to recover in trover and conversion,
the plaintiff or his assif^or^ must have had at
the time of the alleged wrong —

(a) Property, general or special, entitling him to imme-

diate possession; or

(b) Actual possession.^

To recover in trover, plaintiff must show possession in fact, or the
right to recover possession. The wroi^ is not done to the thing
itself, but to the abstia»:t right to the thing.»®» The plaintiff, ac-
cordingly, must allege and prove possession or right of possession
at the time of the alleged wrong; not indefinitely or, for example,
at the time of the commencement of the action.^^* Absolute own-

aoe Cone v. Ivinson (Wyo.) 33 Pac. 31, 35 Pac. 933; House ▼. Phelan, 83 Tex.
r)95, 19 S. W. 140; Moore v. Baker, 4 Ind. App. 115, 30 N. B. 629. And see
Searle v. Sawj-er, 127 Mass. 491. That a railroad company converting goods
by delivery could also be sued is no bar to an action against a person to
whom such goods were delivered. Dickinson v. Merchants' Elevator Co., 44
Mo. App. 498. Generally, as to when a given action is trover, Hoowe v. Krel-
ing, 93 Cal. 136, 28 Pac. 1042; Knipper v. Blumenthal, 107 Mo. 605, 18 S. W.
23; Below v. Robbing, 76 Wis. 600, 45 N. W. 416.

807 Tome v. Dubois, 6 Wall. 548-554; Gulf, C. & S. F. Ry. Co. v. Humphries,
4 Tex. Civ. App. 333, 23 S. W. 556; Brady v. Whitney, 24 Mich. 154.

308 Hunter v. Cronkhite, 9 Ind. App. 470, 36 N. E. t)24; Tribble v. Laird,
92 Ga. 686, 19 S. E. 26.

800 Clerk & L. Torts, 168. Conversion cannot be maintained for a stock of
liquor by one who does not own It, or have an interest therein, though the
business is carried on in his name, for the purpose of saving the real owner
the expense of a wholesale license. Epstein v. Meyer Bros. Drug Co., 82
Tex. 572, 18 S. W. f:92.

310 Gordon v. Ilaiper, 7 Term R. 9, Chase, Lead. Gas. 201; Pyne v. Dor,
1 Term R. 55; Bradley v. Copley, 1 C. B. 685; Sawyer v. Robertson, 11 Mont.
416, 28 Pac. 456; Hunter v. Cronkhite, 9 Ind. App. 470, 36 N. E. 924; Parker
V. First Nat Bank, 3 N. D. 87, 54 N. W. 313; McLaughlin v. Waite, 9 Cow.
670; Smith v. Force, 31 Minn. 119, 16 N. W. 704; Vanderburgh v. Bassett,
4 Minn. 242 (Gil. 171); Balme v. Hutton, 9 Bing. 471-477.

^^- 10] CONVERSION. 711

erahip of chattels — the right of general property — ^is said to draw
to it the right of possession.*" This would seem to mean no more
than that ownership confers the right to take possession. There-
fore one in whom is vested absolute property in a chattel may main-
tain trover and conversion against one who interferes with it, al-
though the owner has never had possession in fact.*" Ck)nstructive
possession is sufficient'*'

There are, however, many kinds of special property, not amount-
ing to absolute ownership, which are sufficient to entitle one to re-
cover for conversion. Special property denotes the possession of
one who has a qualified interest; and it is sometimes added to one
who has only bare possession.'" Where a person relies on special
property, there must, ordinarily, be adduced evidence of possession.
Possession is not annexed to it by a construction of law.'" Bare
po88i?8sion, as of a finder, gives sufficient right to maintain trover.'"

»ii Lexington & O. Ry. Co. v. Kidd, 7 Dana, 245; Abercrombie v. Bradford,
16 Ala. 500-567.

312 Ball, Torts, 70; Gordon v. Harper, 7 Term R. 9; 2 Saund. 47a, note 1;
Ayer v. Bartlett, 9 Pick. 156; Foster v. Gorton, 5 Pick. 185; Stewart v.
Bright, 6 Houst 344.

313 Bristol V. Burt, 7 Johns. 254; McCombie v. Davies, 6 East, 540; post, p.
722. And see cases collected, 1 Ames & S. Lead. Cas. 357. Cf. McNair v. Wil-
cox. 121 Pa. St. 437, 15 Atl. 575.

314 1 Chit. PI. 151-169; Webb v. Fox, 7 Tenn R. 391. "What is meant by
a special property in a thing? Does it mean a qualified right or interest in
the thing, a Jus in re. or a right annexed to the thing? Or does it mean
merely a lawful right of custody, or possession, of the thing, which con-
stitutes a sufficient title to maintain that possession against wrongdoers
by action or otherwise? If the latter be its true signification, it is little
more than a dispute about terms, as all persons will now admit that every
bailee, even under a naked bailment from the owner, and every rightful pos-
-sessor by act or operation of law, has in this sense a special property in the
thing; but this certainly is not the sense in which the phrase is ordinarily
tmderstood." See Story, Bailm. § 93, notes g, h, i. It is consistent with the
treatment of possession and property by Mr. Pollock, as heretofore followed
in this book, to continue to separate possession from property. It would
^eem that the preservation of this distinction conduces to clearness.

315 2 Greenl. Bv. S 637, note 2 et seq.; Clark v. Draper, 19 N. H. 419.

«!• Armory v. Delamirie, 1 Strange, 505; 1 Smith, Lead. Cas. (8th Ed.) pt.

712 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

A foi'Hoii, where there ia possession under claim of title.^^^ The
possession of chattels is, in general, prima facie evidence of prop-
erty, and of a right to their possession, if not against uU who cannot
show a better title, at least against all who rely on an inferior
one.^^^*' As between the flnder and one who claims the chattel as
owner, the former may retain the property a reasonable length of
time to satisfy himself whether the claimant is the owner,*^* In-
deed, a party in or entitled to rightful possession may sometimes
maintain trover against the owner.'^® On the other hand, however,
mere lawful possession of property may not deprive the owner of
his right to recover, although he had intended to part with both pos-
session and property. By the doctrine of constructive repossession,
he may be entitled to maintain trover.'*^ Thus, where goods are

1, p. 679; Chase, Lead. Cas. 201; NichoUs v. Bastard, 2 Cromp., M. & R. G59;
V^ilbraham v. Snow, 2 Wm. Saund. 47a; Northam v. Bowden, 11 Exch. 70;
Buckley v. Gross, 3 Best & S. 666; Sutton v. Buck, 2 Taunt. 302; Linscott v.
Trask, 35 Me. 150; Krewson v. Purdom, 15 Or. 589, 16 Pac. 480. And see
article on "Rights and LiabiUties of the Finder of Chattels" In 16 Chi. Leg.
News, 343.

817 Possession of land under claim of title is sufficient evidence of owner-
ship to entitle the person in possession to maintain trover for crops grown
on the land. Russell v. Willette (Sup.) 30 N. Y. Supp. 490. Seymour v.
Peters, 67 Mich. 415, 35 N. W. 62; Wessels v. Beeman, 87 Mich. 481, 49 N. W.
483.

818 Brown v. Ware, 25 Me. 411; Adams v. McGlinchy, 66 Me. 474; Cook v.
Patterson, 35 Ala. 102; Gilson v. Wood, 20 111. 38. One who, without per-
mission, has cut cord wood fi'om public lands and piled it along a railroad, is
in actual possession thereof, and is engaged in selling it for his own benefit,
may recover its full value, if negligently destroyed by fire from a locomotive;
for the railroad company cannot justify its negligence by showing that plain-
tiff was a trespasser, or question his title without connecting itself with the
true title. Northern Pac. R. Co. v. Lewis, 2 C. C. A. 446, 51 Fed. 658. And
see Gulf, C. & S. F. Ry. Co. v. Johnson, 4 C. C. A. 447^ 54 Fed. 474-480. A
recent statement of the rule is that, in an action for conversion, title in a third
person is no defense, unless defendant can in some manner connect himself
witli such person, and claim under him. Brown v. Shaw, 51 Minn. 266, 53
N. W. 033.

810 Isack V. Clarke, 1 Rolle, 130; Clark v. Chamberlhi, 2 Mees. & W. 78.
320 Roberts v. Wyatt, 2 Taunt. 268; Engel v. Scott & II. Lumber Co. (Minn.)
61 N. W. 825.
8 21 Ball, Torts, 379.

Ch. 10] CONVERSION. 713

delivered for an illegal purpose (as to defraud creditors), the owner
may repudiate the illegal purpose at any time before it is carried
out, and bring trover to recover his goods from the person to whom
they were intrusted.^**

Few things in law, it is said, are more difficult to determine than
what is a sufficient right of property to support trover or replevin.'*'
The defendant cannot succeed by setting up the title of a third per-
son, unless he can so connect himself with such third x>6rson as to
claim title under him.*'* Accordingly, he is driven to defending
his right to the property, and to attacking that of the plaintiff. The
resi)ective rights of possession of defendant and plaintiff vary from
those of an absolute owner to those of a thief. To illustrate, it
seems clear that the owner of personal property leased to another
cannot maintain trover for a conversion pending the demise.'" On
the same principle, one who, in accordance with his authority, dis-
poses of property coming into his possession, is not liable in trover,
though he misapplies the proceeds, takes inadequate security, or
sells for a less price than authorized. | He would, however, be liable

»22 Taylor v. Bowers, 1 Q. B. Div. 291.

8S3 1 Smith, Lead. Cas. (Sth Am. Ed.) pt. 1, p. 690.

»2* "I am of the opinion," said Lord Campbell, 0. J., In Jeffries v. Great
Western Ry. Co., 5 El. & Bl. 802--805, "that the Jaw is that a person possesseil
of goods as his property has a good title as against every stranger, and that
one who takes them from him, having no title himself, is a wrongdoer, and
cannot defend himself by showing that there was title in some third person,
for against a wrongdoer possession is a title." Thorne v. Tilbury, 3 Hurl. &
N. 534; Biddle v. Bond, 34 Law J. Q. B. 137; Harrington v. Trcmblay, 61 X.
H. 413; Cheesman v. Exall, 6 Exch. 341; Bridges v. Hawkes worth, 21 Law
J. Q. B. 75; Brown v. Shaw, 51 Minn. 2G6, 53 N. W. G33; Harker v. Dement,
9 GUI (Md.) 7; Jones v. Kellogg, 51 Kan. 2G;^, 33 Pac. 997; Dmican v. Spear,
11 Wend. 54; Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 3G0; Lowremore v.
Berry, 19 Ala. 130; Weymouth v. Chicago & N. W. Ry. Co., 17 AVis. 507;
Steele v. Schricker, 55 Wis. 134, 12 N. W. 396; JeflPrles v. Great Western Uy.
Co., 34 Eng. Law & Eq. 122; Brown v. Shaw, 51 Minn. 2(>G, 53 N. W. G3:{.
But see Krewson v. Purdom, 13 Or. 563, 11 Pac. 281.

325 Gordon v. Harper, 7 Term R. 9; 1 Chit. PI. 152; 2 Greenl. Ev. § (HO.
Possession under a pledge is defense to an action for conversion. Clark v.
Costello, 79 Hun, 588, 29 N. Y. Supp. 937. And see Borland v. Stokes, 120
Pa. St. 278, 14 Atl. 61. Cf . Kern v. Wilson, 73 Iowa, 490, 35 N. W. 5^.

714 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

if he should dispose of it in a way or for a purpose not authorized,***
A vendor may deliver personal property under a conditional sale,
reserving title in himself, and under such an agreement regain pos-
session, without becoming liable in conversion. And he has been
allowed to recover in trover against such vendee for disposing of it
without his consent,'*^ and against third persons purchasing it
with knowledge of the terms upder which the vendee held it.'*'
But such third persons are not liable to the vendee under such cir-
cumstances.*** A bailee, pledgee, mortgagee, or holder of other
special interest has suflBcient property to enable him to recover the
full value of the personal property as against a stranger to the title;
but he must account to the general owner for the surplus recovered
beyond the value of his own interest.*** As against the general

»2« Lewis V. Metcalf, 63 Kan. 217, 36 Pac. 3i5; Willis v. Adams, 66 Vt. 223,
28 Atl. 1033; Chase v. Blalsdell, 4 Minn. 90; Laverty v. Snethen, 08 N. \.
522; Chase, Lead. Cas. 197; Coleman v. Pearce, 26 Minn. 123, 1 N. W. 846.
A maker of a note pledged certain collateral security, and agreed to maintain
on demand 10 per cent, margin, "and on the nonpe^-formance of this promise,
or any part of it, I authorize S., agent, to sell the collateral," etc. It was
held that the authority to sell related to the failure to pay the note as well
as the failure to maintain such margin, and that a sale for nonpayment was
not a conversion of the collaterals. Manning v. Shriver (Md.) 28 Atl. 899.
In an action for money intrusted to defendant for application in a certain
way, proof that he failed to so apply it is sufficient to sustain a recovery, with-
out proof of how he appropriated it. Crosby v. Clark, 80 Hun, 426, 30 N. Y.
Supp. 329; Syeds v. Hay, 4 Term R. 260.

827 Watson V. Goodno, 66 Vt. 229, 28 Atl. 987. And see Rhodes v. Dickin-
son, 79 Ga. 724, 4 S. E. 164.

328 cf. Smith V. Wood, 63 Vt. 534, 22 Atl. 575. And see cases coUected by
counsel for defendant, page 535, 63 Vt., and page 575, 22 Atl. Although the
agreement be not recorded, as required by the statute, to enable it to avail
against third persons. Rodney Hunt Mach. Co. v. Stewart, 57 Hun, 545, II
N. y. Supp. 448. But see as to executory agreement, Snell v. Thorp (Sup.) 15
N. Y. Supp. 411. And, generally, see McNail v. Ziegler, 68 111. 224; Newhall v.
Kingsbury, 131 Mass. 445; Hardy v. Munroe, 127 Mass. 64; Hance v. Titta-
bawassee Boom Co., 70 Mich. 227, 38 N. W. 228; Scott v. Hodges, 62 Ala. 337;
Northington v. Paber, 52 Ala. 45.

3 20 A person who pays for putting designs on a lithographic stone, title to
which is agreed to be in the printer, cannot sue third pei*son for its conver-
sion. Knight V. Sackett & Wllhelms Lith. Co., 141 N. Y. 404, 36 N. E. 392.

sso Fallon v. Manning, 35 Mo. 271; Atkins v. Moore, 82 111. 2^10; Leoncini

Ch. 10] CONVERSION. 715

owner, or one in privity with the general owner, he can recover only
the value of his special property. On the other hand, abuse by the
bailee of his special property renders him liable in conversion to its
owner. The hirer of a piano, who sends it to an auctioneer to be
sold, is guilty of conversion; and so is the auctioneer who refuses to
deliver it up unless expenses incurred be first paid.*'^ Trover will
not lie against a mortgagee for repossessing himself of the goods on
condition broken by mortgagor."^ A vendor may maintain conver-

V. Post, 13 N. Y. Supp. 825; Mechanics' & Tradere' Bank of Buffalo v. Farmers*
& MechaDics' Nat. Bank of Buffalo, GO N. Y. 40; Russell v. Butterfield, 21
Wend, 300; Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 2G5, 15 N. W, 23T.
Warehousemen have an entire cause of action in trover against persons who
have bought goods stolen from their warehouses, though such goods may have
belonged to divers bailors. Bode v. Lee, 102 Gal. 583, 36 Pac. 036. The offi-
cer holding property under attachment, not plaintiff in attachment, is proper
party plaintiff for conversion of goods attached. Baker v. Beers, 64 N. H.
102, 6 Atl. 35. 1 Sedg. Dam. note a; 1 Smith, Lead. Gas. 210; Northam v.
Bowden, 11 Exch. 70; Buckley v. Gross, 3 Best & S. 566. The bailee may
maintain such action, not only for conversion, but for failure of duty, %vhereby
property has been lost, as against a common carrier or innkeeper. Moran v.
Portland Steam Packet Co., 35 Me. 55; Finn v. Western Ry. Corp., 112 Mass.
524; Duggan v. Wright, 157 Mass. 228, 32 N. E. 159 (mortgagee); Merchants*
& Planters* Bank v. Meyer. 56 Ark. 499, 20 S. W. 406 (landlord's lien on cot-
ton). And see Graw v. Patterson, 47 111. App. 87. Cf. Dainien v. Callaghau
(Cal.) 31 Pac. 263 (contract of purchase).

S81 Loeschman v. Machin, 2 Starkie, 311; Bigelow, Lead. C:as. Torts, 393.
So a sale of samples by a drummer. Kruse v. Seeger & Guernsey Co. ((]k)m.
PI. N. Y.) 16 N. Y. Supp. 529, affirming (City Ct. N. Y.) 15 N. Y. Supp. 825. The
owner of the reversionary interest in such case must show actual damage to
recover more than nominal damage. Johnson v. Stear, 15 G. B. (N. S.) 330;
Blackburn, J., L. R. 1 Q. B. 61 <; Bramwell, J., 3 Q. B. Div. 400. The
bailee cannot deny his bailor's title. Hence in case of adverse claim he can
return to bailor before he has been under pressure, equivalent to eviction by
paramount title. Biddle v. Bond, 34 Law J. Q. B. 137. As to conversion of
stock, see Ryman v. Gerlacli, 153 Pa. St. 197, 25 AU. 1031, and 26 Atl. .302.

882 First Nat. Bank of Colorado Springs v. Wilbur, 18 Colo. 310, 26 Pao.
777; Hanson v. Tarbox, 47 Minn. 433. 50 N. W. 474; Hawver v. Bell, 64 Huu,
636, 19 N. Y. Supp. 612. Compare Dozler v. Pillot, 79 Tex. 224. 14 S. W.
1027, with Lewis v. Ocean Nav. & Pier Co., 125 N. Y. 341, 26 N. E. 301. As
to attacking for usury the mortgage involved in convei-sion, see Omaha Auc-
tion & Storage Co. v. Rogers, 35 Neb. 61, 52 N. W. 826. As to tender after
repossession by mortgagee, see Blain v. Foster, 33 111. App. 297. But con-

716 WRONGS TO POSSESSION AND PROPERTY. [Ch. lO

sion against his vendee for repudiating conditions of sale.*'* And
an action will lie by a mortgagee against the mortgagor or his priv-
ies for removing the chattels mortgaged, whether the mortgage is
due or not.^^* Generally, any form of contract or consent by the-
owner will justify an alleged wrongful disposition.'"^ An equitable-
lien is not sufficient.'*® Authority to dispose and collect proceeds-
does not entitle one to sue third persons for conversion."^ Labor
of an agister under mistake of title does not sustain trover."*

SAME^-THE UNAUTHORIZED ACT.

226. The act of conversion is the distinct, unauthorized^

and positive assumption of the powers of a true
owner.^

227. Neither the benefit to defendant resulting from the-

act, nor ordinarily the motive inducing it, but the=
loss to plaintiff, is the basis of the wrong.

version wiU not lie against a carrier on demand by mortgagee after conditioD-
broken. Kohn v. Richmond & D. R. Co!, 37 S. C. 1, 16 S. B. 376.

888 Vendee refusing to apply proceeds of timber to payment of notes, as re-
quired by deed, is liable in trover to vendor. Willis v. Adams, 60 Vt 223, 28
Atl. 1033 (Ross, 0. J., dissenting).

334 Gill V. Weston, 110 Pa. St. 312, 1 Atl. 921.

835 Tousley v. Board of Education, 39 Minn. 419, 40 N. W. 509; Henry BUI-
Pub. Co. V. Durgin, 101 Mich. 458, 59 N. W. 812; Benedict v. Farlow, 27 N. B.
307. Cf. Story, etc., Co. v. Story, 100 Cal. 30; Marks v. Wright, 81 Wis. 572,
51 N. W. 882. As to transfer as collateral security, see Ricards v. Wedemeyer,.
75 Md. 10, 22 Atl. 1101; Mallory v. Co wart, 90 Ga. 600, 16 S. E. 658; Johnson
v. Osborn, 85 Ga. 664, 11 S. B. 841. A license may be a full protection to the
defendant. Ante, p. 679, "Trespass." But only so far as fair construction will
justify. Huddleston v. Johnson,' 71 Wis. 336, 37 N. W. 407. But authority
from one who is not the owner is no defense, and there Is no presumption that
the licensor had any license from the owner. Applied to conversion of timber
under license from one having no authority, in Millard v. McDonald Lumber-
Co., 64 Wis. 626, 25 N. W. 656.

336 Deeley v. Dwight, 132 N. Y. 59, 30 N. E. 258.

337 Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198.

8 38 Therefore, an innocent trespasser who gets out logs on defendant's land*
cannot recover for latter's disposal of them. Gates v. Rifle Boom Co., 70 Mlch^
300, 38 X. W. 245.

»3» Pol. Torts, § 290. More elaborate statement in, 15 Am. Law Rev. 363.

•Ch. 10] COKVERSIOX. 717

228. The fact of wrongful assumption of the dominion,
when established, entitles the owner or possessor
to recover in trover, despite his subsequent dealings
with the property not amounting to a legal dis-
charge.

»

Every distinct act of dominion exerted over property in denial
•of the owner's right or inconsistent therewith amounts to conver-
sion.^*** By an act of dominion is meant an act tantamount to an
exercise of OTvnership.'** Mere assertion of ownership would not
seem to be suflBcient.'** The act must be unauthorized. If it is
-done in accordance with authority of law, whether process of law

S40 This would seem to be the test of conversion, rather than either (1) inteu-
tion, actual or constructive, to assert title in defendant or against plaintifT;
•or (2) act of aspoi*tation or detention without authority. See Fouldes v. Wil-
loug:hby, 8 Mees. & W. 540; Bristol v. Burt, 7 Johns. 254; Frome v. Dennis, 45
N. J. Law, 515, Chase, Lead. Cas. 199; McPheters v. Page, 83 Me. 2^4, 22 Atl.
101; Webber v. Davis, 44 Me. 147-152; Nichols v. Newsom, 2 Murph. (N. C.)
302; MUler v. Baker, 1 Mete. (Mass.) 27; Baker v. Beers, 64 N. H. 102, 6 Atl.
35; Gibbs v. Chase, 10 Mass. 125-128; Forbes v. Railroad Co., 133 Mass. 154;
Guthrie v. Jones, 108 Mass. 191; Hinckley v. Baxter, 13 Allen, 139; Woodes v.
Jordan, 62 Me. 490; Spooner v. Manchester, 133 Mass. 270; Pease -v. Smith,
61 N. Y. 477; Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492; Alexander v.
Swackhamer, 105 Ind. 81, 4 N. E. 433, and 5 N. E. 908; Hollins v. Fowler, L.
R. 7 H. L. 757; First Nat. Bank v. Northern R. Co., 58 N. H. 203; Baker v.
Beers, 64 N. H. 102, 6 Atl. 35; Gordon v. Stockdale, 89 Ind. 240. See Robert-
son V. Hunt, 77 Tex. 321, 14 S. W. 68; Rhodes v. Dickinson, 79 Ga. 724, 4 S. E.
164; Rodney Hunt Mach. Co. v. Stewart, 57 Huu, 545, 11 N. Y. Supp. 448;
Lewis V. Ocean Nav. & Pier Co., 125 N. Y. 341, 26 N. E. 301; Olds v. Chicago
Open Board of Trade, 33 111. App. 445; Thomson v. Gortner, 73 Md. 474, 21
Atl. 371; BoUing v. Kirby, 90 Ala. 215, 7 South. 914; Omaha Auction & Storage
€o. V. Rogers, 35 Neb. 61, 52 N. W. 826; Smith v. Wood, 63 Vt. 531, 22 Atl. 575;
Johnson v. Farr, 60 N. H. 426; MiUer v. Thompson, 60 Me. 322; Reeve v. Fox,
40 111. App. 127; Loeffel v. Pohlman, 47 Mo. App. 574; Petrie v. Williams, 68
Hun, 589, 23 N. Y. Supp. 237; Williams v. Smith, 153 Pa. St. 462, 25 AU. 1122;
Sanborn v. Hamilton, 18 Vt. 590.

«*i Bigelow, Torts, 184.

8*« Bumside v. TwitcheU, 43 N. H. 390. But see Rembaiigh v. Phlpps, 75
Mo. 422. Slander of title might lie. Bigelow. Torts, 198, 199. Writ of re-
plevin may justify a sheriff. Swautz v. Pillow, 50 Ark. 300, 7 S. W. 167.

718 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

or otherwise,'** or with the consent of the party,"** it is no wrong.
The conversion must be without **lawf ul occasion." The act must be
a positive tortious act.'*" A merely passive defendant cannot be
guilty of conversion.'** Nonfeasance or neglect of legal duty, as
a mere failure to perform an act made obligatory by contract or
by which property is lost to the owner, does not constitute conver-
sion.'*^ Thus, a bailee is not liable in trover for loss of property
through larceny from him, or because of negligence resulting in its
destruction.'*' Indeed, it is doubtful whether a person already in

8«3 Distress is no conversion (Agars v. Lysle, Hut. 10), unless it be iUegal
(Shipwick V. Blanchard, 6 Term R. 298). And see Holsworth's Case, Clayt.
57, and Mires v. Solebay, 2 Mod. 242. But an officer is liable for conversion
for carrying away nonseizable property under judicial writ (Tinker v. Pool, 3
Bun*ows, 2(557), or property not described in the writ (Carpenter v. Scott, 86
Iowa, 5G3, 53 N. W. 328). Generally, see Stuart v. Phelps, 39 Iowa, 14; Pres-
cott V. Wright, G Mass. 20; Case v. Hart, 11 Ohio, 3G4. Ante, p. 126, "Liabil-
ity of Executive Officers"; ante, p. 130, "Sheriffs"; post, p. 722, note 364.
So it is no conversion to drive trespassing cattle out of defendant's close.
Stevens v. Curtis, 18 Pick. 227. And see Wilson v. Mcl^aughlin, 107 Mass. 587;
Bonney v. Smith, 121 Mass. 155; Tobln v. Deal, 60 Wis. 87, 18 N. W. 634.
Necessity may be justification, as throwing goods over in a storm. Bird v.
Astcock, 2 Bulst. 280; Drake v. Shorter, 4 Esp. I(i5; Macon & W. R. Co. v.
Holt, 8 (5a. 157; McCairoll v. Stafford, 24 Ark. 224; Nelson v. MeiTiam, 4 Pick.
249; Perkins v. Ladd, 114 Mass. 420.

»4* Hills V. Snell, 104 Mass. 173. Although it need not have been against the
will of defendant. Hurapfner v. D. M. Osborne & Co., 2 S. D. 310, 50 N.
W. 88.

.140 One who surrenders bonds to another cannot maintain trover on refusal
of such other to redeliver the bonds, where there is no evidence that his pos-
session, retention, or disposal of the bonds was tortious. Biel v. Horner (Com.
PI.) 30 N. y. Supp. 227.

8*8 Ragsdale v. Williams, 8 Ired. 498. Thus, refusal to return a borrowed
sled is not conversion. Farrar v. Rollins, 37 Vt. 295.

347 stmges V. Keith, 57 111. 451; Dame v. Dame, 38 N. H. 429; Bailey v.
Moulthoi-p, 55 Vt. 17; Munger v. Hess, 28 Barb. 75; Rogers v. Huie, 56 Am.
Doe. 31*3; Bowlln v. Nye. 10 Cush. 410; Ragsdale v. AVilliams, 49 Am. Dec. 406;
Devereux v. Barclay, 2 Barn. & Aid. 702.

348 Ross V. Johnson, 5 Burrows, 2825, and cases cited in Ames, I^ad. Cas.
405; HaAvklns v. Hoffman. 6 Hill. 58(5; I*ackard v. Getman. 4 Wend. 613;
Farrar v. Rollins, 37 Vt. 295. Cf. Jones v. Hodgkins, 61 Me. 480. If the
finder allows butter to spoil, a lioij-e to Ptarve, a garment to be eaten by
moths, he is not liable in trover; but it is otherwise if he uses or misuses

Ch. 10] CONVERSION. 71i>

possession can commit the wrong of conversion by any act of inter-
ference limited to a special purpose, and falling short of the total
assumption of the powers of a true owner, and depriving such owner
of all beneficial use of the property.' *•

Violation of Absolute Duty,

It is not necessary to show advantage on the part of the defend-
ant. The property need not have been converted to his own use;
deprivation on the part of the plaintiff is sufficient.*'^® In such
cases, however, there must be an intention to deprive the owner, for
some period, of the use of his property, except, indeed, in the case
of common carrier. He, being in the eyes of the law an insurer,
ifi liable for an innocent misdelivery of goods intrusted to him.*"*
As has been seen, the duty to respect the property and possession

what he has found. Mulgrave v. Ogden, Cro. Eliz. 219, Ames, Lead. Cas.
391, and cases cited In note. But see, contra, iStory, Bailm. f 87; 2 Kent,
Comm. 568.

«*9 "The truth Is that, in order to maintain trover, a plaintiff who is left
in possession of the poods must prove that his dominion over his property lias
been interfered with, not in some particular way, but altogether; that he
has been entirely deprived of the use of it. It is not enough that a mar
should say that something shall not be done by the plaintiff; he must say
that nothing shaU.*' Brainwell, B., in England v. Cowley, L. R. 8 Exch. 126.
It is not conversion to prevent the removal of chattels not in defendant's pos-
session. Post, p. 725; Pol. Torts, •p. 290.

860 Perkins v. Smitli, 1 Wils. 328; Parker v. Goden, 2 Strange, 813; Hiort
T. Bott. L. R. 9 Exch. 86, and cases post, p. 723, note 307; McPheters
V. Page. 83 Me. 234, 22 Atl. 101; Liptrot v. Holmes. 1 Kelly. 381-391; Nut-
ter V. Ricketts, 6 Iowa, 92; Stephens v. El wall, 4 Maule & 8. 259; Fine Art
Soc. V. Union Bank, 17 Q. B. Div. 705. As to mitigation of damages whei-e
proceeds were applied to plaintiff's benefit, see Mississippi Mills v. Meyer,
83 Tex. 433. 18 S. W. 748.

851 Devereux v. Barclay, 2 Barn. & Aid. 702; Mills v. BaU, 2 Bos. & P.
457; Dewell v. Moxon, 1 Taunt. 391; Oppenhelm v. Russell, 3 Bos. & P. 42;
Stephenson v. Hart, 4 Bing. 476; Youl v. Harbottle, Peake, 68; Ball, Torts,
388; Alabama & T. R. R. Co. v. Kidd, 35 Ala. 209; Louisville & N. R, Co.
V. Barkhouse, 100 Ala. 543, 13 South. 534; Adams v. Blankenstein, 2 Cal.
413; Hanna v. Flint, 14 Cal. 74; Indianapolis & St. L. R. Co. v. Hemdon, 81
III. 143; Claflin v. RaUroad Co., 7 Allen, 341; Gulllanme v. Hamburg & A.
Packet Co., 42 N. Y. 212. A common carrier is therefore not liable for re-
fusal to deliver until satisfied as to the propriety of so doing. McEntee v.
Steamboat Co.. 45 N. Y. 34.

720 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

of another is absolute. One is not excused by showing, for exam-
ple, that he was not personally guilty of intentional fraud,"^* or
that he acted under an honest but mistaken idea of title.'** The
duty to respect property, however, is not so absolute as entirely
to disregard the intention of the defendant. It has been held by
the highest authorities that, when the act done is equivocal in its
nature, there must be an intention of the defendant to take to him-
self the property in the goods, or to deprive plaintiff of it, to niake
him liable for conversion.' '* The absence of an improper motive,
however, while not ordinarily a matter of justification, may mate-
rially affect the measure of plaintiff's damage."^*

Subsequent Dealings tvith Property.

The subsequent offer to return, or the subsequent recovery or re-
turn, of the property wrongfully converted by another, or its pro-
ceeds, in part or whole, does not extinguish the owner's right of ac-

8 02 Bonaparte v. Clagett, 78 Md. 87, 27 Atl. 619.

8 53 Waverley Timber & Iron Co. v. St. Louis Cooperage Co.. 112 Mo. 388,
20 S. W. 506; Benton v. Beattie, 63 Vt. 186, 22 Atl. 422; MorrUl v. Moulton,
40 Vt 242; Baker v. Kansas City, C. & S. R. Co., 52 Mo. App. 602; WUlianis
V. Deen, 24 S. W. 536; Spraiglits v. Hawley, 30 N. Y. 441; Wilson v. Hoff-
man, 93 Mich. 72, 52 N. AV. 1037; Camody v. Portlock (Ala.) 12 South. 871;
KimbaU v. Billings, 55 Me. 147; Scofield v. Krelser (City Ct. N. Y.) 3 N. Y.
Supp. 803. One who sells property as under a mortgage which was not In-
cluded therein is liable for the conversion, whether he knew it or not. Ken-
ney v. Ranney, 96 Mich. 617, 55 N. W. 982.

854 Simmons v. Lillystone, 8 Exch. 431; Fouldes v. Willoughby, 8 Mees. &
W. 540. Post, pp. 734-736, "Ministerial Duties"; ante, p. 129, note 02.
In the driving cases a defendant may drive further or otherwise differently
than the contract provides. If he do this with Intention to break a contract,
he may be liable in conversion ; or, If he do it carelessly, In case (negligence) ;
but, if he does it because he has innocently lost his way, he is not Ual^le at all.
Post, p. 730, note 410. Thus, if a person who hires a horse to drive to a
particular place, by mistake, takes the wrong road, and on such discovery
returns by a circuit through another town, he is not liable in trover for con-
version of the horse. Spooner v. Manchester, 133 Mass. 270, reviewing cases;
Famsworth v. Lowery, 134 Mass. 512-519; Shea v. Milford, 145 Mass. 525,
14 N. E. 769. So intent to preserve wine may Justify handling it otherwise
tortiously. Post, p. 730, note 407,

855 Baltimore & O. R. Co. v. O'Donnell. 49 Ohio St. 489, 32 N. E. 470;
Woo<len-Ware Co. v. U. S.. ir.C, r. S. 4;J2, 1 Sup. Ct. 39S.

Ch. 10] CONVERSION. 721

tion against the wrongdoer,''^* but operates only by way of mitigat-
ing damages. '^^^ A judgment in trover does not vest the title of
the property in the defendant, unless such judgment be for the
value of the property, — ^not for merely nominal damages, — and is
followed by satisfaction.^^® The owner may, however, treat the
transaction as a sale, and, by waiving the tort, maintain an action
ex contractu. The effect of this would be to pass title.*°" A land-

3S6 Robinson v. Lewis, 6 Misc. Rep. 37, 25 N. Y. Supp. 1004. An offer to
i-olnstate plaintiff, whose stock was Illegally sold for nonpayment of dues, is
no defense to the conversion. Carpenter v. American Bldg. & Loan Ass'n,
54 Minn. 403, 56 N. W. 95, 577. And see Allen v. American Bldg. & Loan
Ass'n, 49 Minn. 544, 52 N. W. 144.

3 57 wmiams V. Archer, 5 C. B. 318; Watson v. Cobum, 35 Neb. 492, 53 N.
W. 477; Carpenter v. American Building & Loan Ass'n, 54 Minn. 403; Gilbert
V. Peck, 43 Mo. App. 577; Gibbs v. Chase, 10 Mass. 125; Brewster v. S.lli-
man, 38 N. Y. 423; Reynolds v. Shuler, 5 Cow. 323; Baltimore & O. R. Co. v.
O'DonneU, 49 Ohio St 489, 32 N. E. 47G; ante, p. 398, "Damages." Where the
property has been returned, plaintiff is entitled, not merely to nominal dam-
ages, but to the difference of the value of the property when converted and
when returned. Stillwell v. Farrell, 64 Vt. 286, 24 AU. 243. On touder,
owner Is not bound to receive property converted. Higgins v. Whitney, 24
Wend. 379. Voluntary payments by defendant on plaintiff's obligations can-
not be set up. Frank v. Tatum (Tex. Civ. App.) 26 S. W. 900; ante, p. 40C»,
note 233. A short note on the effect of the return of the property on the
question of damages, 41 Am. St. Rep. 43. Watson v. Cobum, 53 Mo. 477.

8 68 Singer Manuf'g Co. v. Stillman, 52 N. J. Law, 263, 19 Atl. 260. Tlain-
tlff brought trover, aided by attachment of the converted property, against
defendant B. and defendant C, to whom B. had sold the property, and ob-
tained judgment against B. alone. The property was seized under execution
under such judgment Before it was sold C. i-eplevied the property, aiid the
Judgment remained unsatisfied. This did not divest plaintiff of title to the
pi'operty, nor estop her from bringing replevin to recover such property from
one to whom C. had intrusted It. (Field, C. J., and Knowlton and Holmes,
JJ., dissenting.) Miller v. Hyde, 161 Mass. 472, 37 N. E. 760. And see Heiv
bum V. Sewell, 5 Har. & J.-211; Acheson v. Miller, 2 Ohio St. 203; Alwater
V. Tupi)er, 45 Conn. 144; Hopkins v. Hersey, 20 Me. 449; Thurst v. West, 31
N. Y. 210; Lovejoy v. Murray, 3 Wall. 1-16; Elliott v. Hayden, 104 Mass. 180.
Cf. Galvin v. Parker, 154 Mass. 346, 28 N. E. 244. But compare, as to bar
of judgment. White v. Philbrjck, 5 Me. 146. See Id., 17 Am. Dec. 214, note
at page 218; Kenyon v. Woodruff, 33 Mich. 310-315; Parmelee v. Loomis, 24
Mich. 242; ante, c. 4, "Judgment against Joint Tort Feasors."

800 Terry v. Munger, 121 N. Y. 161, 24 N. E. 272; Kalckoff v. Zoehrlaut, 40

I*AW OF TOKTS— 46

722 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

lord does not waive conversion of timber cut by a tenant on the
demised premises by the acceptance of rent for a period subsequent
to such conversion. ^*^® Conversion may, however, be waived by
subsequent ratification, express or implied.*^"*

229. An act of conversion is committed ^^hen one of the
following circumstances exist, or more than one
concur:
(a*) When the property is wrongfully taken;

(b) When it is wrongfully parted with;

(c) When it is wrongfully retained;

(d) When it is wrongfully destroyed.*"

Taking Property,

The fiction of finding, as an essential of trover, has been abolished.
"It is not material whether the tenant got possession lawfully, or
unla\vfully. In the latter case he waives the trespass and admits
the possession to have been lawfully gotten, when he sues in tro-
y^.j.j?368 Taking may constitute the act of conversion.'** "Any

Wis. 427; ante, p. 295, **Waiver." Election to sue ex contractu or ex delicto.
Moore v. HIU, 62 Vt. 424, 19 Atl. 997.

360 Brooks V. Rogers, 101 Ala. Ill, 13 South. 386. See Singer Manurg
Co. v. Greenleaf, 100 Ala. 272, 14 South. 109.

361 Firemen's Ins. Co. of Mobile v. Cochran, 27 Ala. 228. See Hotchkiss
V. Hunt, 49 Me. 213.

862 Clerk & L. Torts, 167.

36 8 Lord Mansfield, in Cooper v. Chitty, 1 Burrows, 20-31.

3 64 The very act of taking goods from one who has no right to dispose of
them is in itself a conversion. Both the person who takes and the person
who disposes are liable. Hurst v. Gwennap, 2 Starkie, 306; Yates v. Carn-
sew, 3 Car. & P. 99; H'Ubery v. Hattou. 2 Hurl. & C. 822; Thatcher v. Mor-
ris, 134 Mass. 15G-1G7; post, p. 734, note 432. And see Bearce v. Bow-
ker. 115 Mass. 129; Barrett v. Warren, 3 Hill, 348. In McCombie v. Daviee,
6 East,- 538, there was wrongful detention, without redelivery to the bailor,
by the pawnee of property wrongfully pawned by an agent. This case is
said to be the extreme verge of tlie law. Mallalieu v. Laugher. 3 Car. & P.
551. Et vide Spackman v. Foster, 11 Q. B. Div. 99. It has, however, been
approved. Fine Art Soc. v. Union Bank, 17 Q. B. Div. 712. Et vide WiDiin-
son V. King, 2 Camp. 335. Trespass may also lie for such taking. Stanley
v. Gaylord, 1 Cush. 536. But taking is not conversion, where plaintiff's own
wrong was the occasion, as where plaintifiC allowed cattle taken by defend-

Ch. 10] CONVERSION. 723

asportation of a chattel/' says Mr. Baron Alderson,'** "for the use
of the defendant or a third person, amounts to a conversion, for this
simple reason: that it is an act inconsistent with the general rights
of dominion, which the owner of the chattel has in it, who is en-
titled to the use of it at all times and in all places. When, there-
fore, a man takes that chattel, either for the use of himself or of
another, it is conversion." In order, however, that a mere actual
taking should constitute a conversion, there must be an intention to
exercise dominion.'®* An actual taking away is not always neces-
sary. Thus, if an officer levy on a wood pile as the property of an-
other, taking it under his control and into his custody so far as pos-
sible, this is such an exclusion of the lawful owner as will constitute
conversion.'*^ However, the mere assertion of a pretended right
by one not in possession, nor entitled to an immediate possession,
of property, or the threatening by such a person to prevent the true
owner from dealing with his property, though it may be, a cause of
action if it results in special damages, is not conversion.^**® Cases
in which taking is the sole element of conversion are not common.
Ordinarily other elements of conversion concur.'**

ant to run at large. WeUlngton v. Went worth, 8 Mete. (Mass.) 548; Ni)rtli
Penn. Ry. Co. v. Rehman, 49 Pa. St 101; Van Valkenburg v. Thayer, 57
Barb. 196. But see Piatt v. Tuttle, 23 Conn. 233.

3«B Fouldes V. WiUoughby, 8 Mees. & W. 540. Kt vide Bt^ckwith v. El-
sey, Clayt. 112; Houghton v. Butler, 4 Term R. 3r>4.

see Clerk & L. Torts, 1C8.

3e7 Molm V. Barton, 27 Minn. 530, 8 N. W. 765; Hossfeldt v. Dill, 28 Minn.
469, 10 N. W. 781. Compare Appleton Mill Co. v. Warder, 42 Minn. 117. 43
N. W. 791. But see Mallalieu v. Laugher, 3 Car. & P. 551; Herron v.-
Hughes, 25 Cal. 556; Fernald v. Chape, 37 Me. 289; Bailey v. Adams, 14 Wend.
201; Johnson v. Farr, 60 N. H. 420.

see A transfer on books or indorsement on document of title constitutes
constructive taking. McCombie v. Davies, 6 East, 538. Plngland v. Cow-
lej-, L. R. 8 Bxch. 126; Hartley v. Moxham. 3 Q. B. 701. Corapai-e Wans-
brough V. Maton, 4 Adol. & E. 884. Et vide Guthrie v. .Tones, 108 Mass. 101.
Cf. Chapin v. Freeland, 142 Mass. 383, 8 N. E. 128 (replevin), and Loonunl
V. Stickney, 131 Mass. 5^1. And see 'Cjaylor v. Horrall, 4 Blackf. 317; North-
rup V. Trask, 39 Wis. 515; Boobier v. Boobier. 3t) Me. 406; Davis v. Buflfum,
51 Mo. 160. Contra, Crocket v. Beaty, 8 Humph. 20. Cf. Huddlestons* Adm'r
V. Currin, 4 Humph. 237.

aeo In an action against a bank cashier for embezzlement, plaintiff must
show receipt as well as misappropriation. Panama R. Co. v. Johnson, 63

724 VVKONGS TO POSSESSION AND PROPERTY. [Ch. 10

Parting with Property.

One of the most common exercises of dominion, unequivocally in-
dicating an assumption of title, is a sale of a chattel without the
authority of the owner."^ There is liability for a sale under mis-
take of ownership. *The very assuming to one's self the property
and right of disposing of another man's goods is a conversion.""**
There may be liability for an excessive sale.*^*' An officer is liable
for the wrongful sale of property,'*' and also the party at whose in-
stance the officer makes the wrongful sale.'** An attempt to sell is

Ilun, 029. 17 N. Y. Supp. 777. Et vide Rushln v. Tharpe, 88 Ga. 779, 15 S.
E. a30; Traylor v. Hughes, 88 Ala. 617, 7 South. 159. CJompare Freeman v.
(;rant, 132 N. Y. 22, 30 N. E. 247. A vendcH* who has shipped goods to an-
other on credit, and who notifies the railroad company not to deliver them,
may uinintain trover agaiust a sheriff who takes them from the railroad
company on attachment against the vendee. Wolf v. Shepherd (Ala.) 15
South. 519. Obtaining possession of property from an owner incapacitated
by Intoxication, and retaining possession, constitutes conversion. Balrd v.
Howard (Ohio) 36 N. E. 732. Obtaining a check without plaintiff's author-
ity, as by foi-gery, is a conversion. Schmidt v. Garfield Nat Bank, 64 Hun,
21)8, 10 N. Y. Supp. 252.

870 Fette V. Lane (Cal.) 37 Pac. 914.

871 Baldwin v. Cole. 6 Mod. 212, cited In McComble v. Davies, 6 East 538.
Thus, the conveyance of property by the receiptor under attachment is
conversion. Et vide post, note 432; Miller Piano Co. v. Parker, 155 Pa. St.
lios. 2(J Atl. 3(«; Lyon v. Gonnley. 93 Pa. St. 201. But a void attempt at
foreclosure of a chattel mortgage Is not a conversion. Powell v. Gagnou.
52 Minn. 232, 53 N. W. 1148. Compare Comfort v. Creelman, 52 Minn. 280,
r^i N. W. 1157. And, further, see Fine Art So<4ety v. Union Bank, 17 Q. B.
T>iv. 705; Wilkinson v. King, 2 Camp. 335; Spackman v. Foster, 11 Q. B.
Div. 99.

37 2 A cliattol mortgagee is liable, and liable only, when he sells more proiv
erty than enough to satisfy the mortgage and the cot^ts. Omaha Auction &
Storage Co. v. Rogers, 35 Neb. 01, 52 N, W. 820. Generally, see Alderd v.
Constable, 6 Q. B. 370; Lancashire Wagon Co. v. Fitzhugh. « Hurl. & N. 502.
Hut an assignment of the right of assignor in a chose of action on which an-
other has a lien, of which the apsigneo bus notice, is not conversion against
the holder of such a lien. Comfort v. Creelman, 52 Minn. 280, 53 N. W. 1157.

873 Jones V. Kellogg, 51 Kan. 2(U{, 'Xi Pac. 997; Whitney v. Preston. 2t>
Neb. 243, 45 N. W. G19. Compare Freeman v. Grant, 132 N. Y. 22, 30 N. E.

247; ante, p. 130, ^'Sheriff."
37 4 Kane v. Hutchison, 93 Mich. 48S, 53 N. W. 024; Phelps V. Delmore, 09

Hun, 18, 23 N. Y. Supp. 229.

Ch. lOJ CONVERSION. "2-^

saflScient.*^' Assignment of a qualified interest in property is a
conversion only when the assignor has no assignable interest. A
premature sale,*^* or a mere irregularity, as a subpledge by a
pawnee, does not amount to conversion.' ^^ A disposal of a part of
the chattel is such an act of dominion as may amount to a conver-
sion.'^* Forms of parting with property other than by sales may
amount to conversion; as delivery of goods by bailee to officers un-
der an illegal attachment, or to another person after notice of the
claim of the true owner, or under mistake.' ^*

Retaining Property.

Mere retention of the property of another in violation of his right
may constitute conversion."® Thus, claiming a lien on,^*^ or min-
gling special with general, deposits,"* or locking up a building con-

37 5 Dickey v. Franklin Bank, 32 Me. 572. As to fraudulent sale, see White
T. Garden, 10 C. B. 919.

876 Donald v. Sncklinff, L. R. 1 Q. B. 585; Bigelow, Lead. Cas. 394.

377 Halliday v. Holgate, L. R. 3 Exch. 299-^02; Nlles v. Edwards, 00 Cal.
10, 27 Pac. 159.* A sale for credit by agent authorized to sell for cash only
Is not a conyersion. Loveless ▼. Fowler. 79 Ga. 134, 4 S. E. 103.

878 Clendon v. Dinneford. 5 Car. & P. 13; Philpot v. Kelley. 3 Adol. & E.
106; Brown v. Ela (N. H.) 30 Atl. 412. A "short sale" wlU not support con-
yersion. Campbell v. Wright, 118 N. Y. 594, 23 N. E. 914.

870 Alabama & T. R, R. Co. v. Kidd, 35 Ala. 209. Phillips v. Biigliam,
2G Ga. 617. A coUectlon of authorities as to the duty and liability of a car-
rier when adverse claim is set up to property received for transportation,
34 Am. St. Rep. 731. Insurance agent does not convert by returning policy
to the company. Bull v. Knowlton, 21 Can. Sup. Ct. 371. .

880 Osborn v. Potter, 101 Mich. 300, 59 N. W. 606.

881 Jacaoby v. Laussatt, 6 Serg. & R. 300.

881 Moving and shipping wheat, Phillip Best Brewing Co. v. PlUsbury &
Hurlbut Elevator Co., 5 Dak. 62, 37 N. W. 763. A creditor of an estate, who
has possession of stocks payable to deceased, as executrix, commits no c<hi-
verslon in holding them for her executor, as against her successor in the ad-
ministration of her husband's estate, pending the decision of said successor's
suit against her estate for her conversion of said stocks. Mills v. Britton, 04
Conn. 4, 29 Atl. 231. When a trustee mingles his own funds with trust funds.
and then takes a part for his own use, the part taken will be presumed to be
his own, and not that which he held as trustee. Standlsh v. Babcock (X. J.
Oh.) 29 AtL 327.

720 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

taining chattels bought by another,*"* may be conversion. On the
other hand, for example, mere delay in transportation is not a sufB-
oiont retention to constitute conyersion,*** nor the negligent keeping
ot what a man has found.*** Demand and refusal, before com-
mencement of an action,* *• while they do not in themselves consti-
tute conversion, may be necessary to show conversion when other
conduct fails to show it,**^ and are prima facie but not conclusive
evidence of conversion.*** Notwithstanding many loose sayings to
the contrary they are not the only evidence of conversion.*** Thus,
such refusal does not prove conversion if the party has not the
power of compliance,**® although the act whereby the goods are put

8 88 Hughes V. Coora, 3 Colo. App. 303, 33 Pac. 77. Et vide Jones v. Hunt,

74 Tex. 657, 12 S. W. 832.

384 Brig^s V. Railway Co., 28 Barb. 515. Bt vide Stackpole v. Railway Co.,
62 N. H. 493.

3 8B Mulgrave v. Ogden, Cro. Eliz. 219; Burronghes v. Bayne, 5 Hurl. & N.
296. And see Gilmore v. Newton, 9 Allen, 117. A bona flde purchaser of per-
sonal property wrongfully taken from possession of the owner is not liable for
conversion until after demand and refusal. Gellet v. Roberts, 57 N. Y. 28
(disapproving Dunning v. Austin, 34 Vt 330; limiting Wooster v. Sherwood,
2.J N. Y. 278).

3 86 Cross V. Barber, 16 R. I. 266, 15 Atl. 69.

3 87 Demand, Nixon v. Whitsett, 2 H. Bl. 135; Castle v. Corn Exch. Bank,

75 Hun, 89, 26 N. Y. Supp. 1035; refusal, Severn v. Keppel, 4 Esp. 156; Hol-
brook V. Wright, 24 Wend. 109. Plaintiff is sometimes said to be bound to
prove either actual conversion or demand and refusal. Jones v. Fort, 9 Bam.
& C. 704. This is not accurate. Post, p. 727, note 394.

»f • Anon. (Holt, C. J.) 12 Mod. 344, Ames, Lead. Cas. 399; Baldwin y. Cole,
6 Mod. 212; Esmay v. Fanning, 9 Barb. 176; Singer Co. v. King, 14 B. I. 5,
Chase, Lead. Cas. 205; Osborn v. Potter, 101 Mich. 300, 59 N. W. 606 (con-
version of a building); Jorgensen v. Tait, 26 Minn. 327, 4 N. W. 44; Catterall
v. Kenyon, 3 Q. B. 310. Compare with Duggan v. Wright, 157 Mass. 228, 32
N. E. 159; Daggett v. Davis, 53 Mich. 35. 18 N. W. 548.

388 Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476 <a
leading case). "Any wrongful exercise of dominion over chattels to the ex-
clusion of the right of the owner, or withholding them from his possession
under a claim inconsistent with his rights, constitutes conversion." Dietus v.
Fuss, S 3kld. 148.

390 Thus, in '* trover for a deed," the evidence of conversion was that when
the deed was demanded from the defendant he said he would not deliver
It up, but that it was then in the hands of his attorney. He had a lien upon

Ch. 10] CONVERSION. 727

out of such power may be conversion, as where they are sold."'^
The demand must be unconditional.' •'

Demand is not, however, always necessary; as where the taking
is tortious, where there has been an actual conversion of the prop-
erty,**' where there has been refusal before demand,'®* or where

it. This was held sujfflcleut. Smith v. Young, 1 Camp. 439. Denial is not evi-
dence of conversion If the property be lost by negligence. Anon., coram
Tryor, C. J. (1705); Ames, Lead. Cas. 400. And see Eni?land v. Cowley, L. R.
8 £xch. 126; Featherstonhaugh v. Johnston, 8 Taunt. 237; Spackman v.
Foster. L. It. 11 Q. B. 09; Tear v. Freebody, 4 C. B. (N. S.) 228. This doc-
trine is generally recognized by American cases. Thus, in Dear bourn v.
Union Nat. Bank, 58 Me. 273, it was held that demand and refusal were
not sufficient evidence of conversion, where it appeared that defendant was
not in possession or control of the property, it having been previously lost,
stolen, or misdelivered. Indeed, a common carrier does not seem to be
liable for conversion if the goods have been either lost or stolen. Pack-
ard V. Getman, 4 Wend. 613. In general, see Carr v. Clough, 26 N. H.
280; Hill v. Covell, 1 N. Y. 522; Kelsey v. Griswold, 6 Barb. 436; Whitney
v. Slauson, 30 Barb, 276; McCormIck v. Hailroad Co., 80 N. Y. 353; Davis v.
Buffam, 51 Me. 160; Johnson y. Coulllard, 4 Allen, 446; Pitlock v. Wells,
Fargo & Co., 109 Mass. 452 (citing Smith v. Bank, 99 Mass. 605, to the effect
that there is no liability for negligence unless something could not be ac-
counted for upon search). £t vide Dietus v. Fuss, S Md. 148.

a»i Ante, p. 724, "Parting with.*' And see Crampton v. Valido Marble Co.,
60 Vt 291. 15 Atl. 153.

3»2 Rushworth v. Taylor, 3 Q. B. 699.

«»8 Forsdick v. Collins. 1 Starkie, 173; Lovell v. Martin. 4 Taunt. 799;
Edgerly v. Whalan, 106 Mass. 307; Smith v. .Tensen, 13 Colo. 213, 22 Pac.
434; Rice v. Yocum, 155 Pa. St. 538. 26 Atl. 098; Taylor v. Lyon tPa. Sup.)
13 Atl. 739; Springer v. Groom (Pa. Sup.) 12 Atl. 446; Baker v. Lothrop, 155
Mass. 376, 29 N. E. 643; Velsian v. I^wis, 15 Or. 539, 16 Pac. 631; Follott v.
Edwards, 30 111. App. 386; Missouri Pac. Ry. Co. v. Hoidenhelmer, 82 Tex.
195, 17 S. W. 608: Gould v. Blodgett, 61 N. H. 115; Rosum v. Hodges. 1 S.
D. 308. 47 N. W. 140; Lafayette Co. Bank v. Metcalf. 40 Mo. App. 41>4. So,
where there has been a sale of part of the property, and the remainder is
retained under denial of title, no tender or demand is necessary. Her v.
Baker. 82 Mich. 226. 46 N. W. 377. So where the custodian of a cask of
wine bottles it for his own use, though he does not drink it. Philiwtt v.
Kelley, 3 Adol. & E. 106. And see Rilly v. Boston Water Power Co., 11 Cush.
11; Ames, Lead. Cas. Torts, 561 (cases collected, page 563). And see Rose-
nau V. Syring, 25 Or. 386, 35 Pac. 844.

3»4 First Nat. Bank v. Kickbusch. 78 Wis. 218, 47 N. W. 267; Bonaparte
w. Clagett, 78 Md. 87, 27 Atl. 619; Claflin v. Gurnoy, 17 R. I. 1S5, 20 Atl. 932;

728 WRONGS TO P03SES9ION AND PROPERTY. [Ch. 10

the purchase of goods has been effected through the fraud of the
vendee.'** The refusal, ordinarily, must also be unconditional.^'*
If the defendant is in doubt as to the plaintiff's title, he may wait
what a jury will consider a reasonable time to clear up the doubt.**^
But, while an unqualified refusal to abide by the conditions of spe-
cial property is conclusive evidence of a conversion, if there be a
qualification annexed to it, the question then is as to the reasonable-
ness of such qualification. Thus, a keeper of a key to a warehouse
may say to a bailor, "You must have my master's orders." '®* The
substance of the refusal is the denial of title.'®* The jury, under

Fulton V. Lydecker (Olty Ct. N. Y.) 17 N. Y. Supp. 451. And» generally,
see Ashfield v. Edgell, 21 Ont. 195. As to what constitutes sufficient demand,
see Duggan v. Wright, 157 Mass. 228, 32 N. E. 159; Baumann v. Jefferson
(Com. PL) 23 N. Y. Supp. 685. Where a tenant in common is present, and
forbids the conversion of personal property as cotenant, demand for return Is
not necessary before suit. Waller v. Bowling, 106 N. C. 280, 12 S. E. 990

3 05 Thiu-ston V. Blanchard, 22 Pick. 18; Green v. Russell, 5 Hill, 183;
Thompson v. Rose, 16 Conn. 71; Stevens v. Austin, 1 Mete. (Mass.) 557; Ladd
V. Moore, 3 Sandf. 589; Bo wen v. Fenner, 40 Barb. 383; Yeager v. Wallace,
57 Pa. St. 365; Noble v. Adams, 7 Taunt. 59. And see Earl of Bristol v. Wils-
moro, 2 Dowl. & R. 755. But see Parke, B., in Powell v. Hyland, 6 Exch.
67-72; Gregory v. Fichtner (Com. PL) 14 N. Y. Supp. 891.

306 See Felclier v. McMillan (Mich.) 61 N. W. 791.

307 Vaughan v. Watt, 6 Mees. & W. 41)2; PiUott v. Wilkinson, 3 Hurl. & C.
345; Lee v. Bayes, 18 C. B. 599; Zachary v. Pace, 9 Ark. 212; Fletcher V.
Fletcher, 7 N. H. 452; Ball v. Liney, 48 N. Y. 6. But see Thorogood v. Robin-
son, 6 Q. B. 769.

808 Solomons v. Dawes, 1 Esp. 83; Green v. Dunn, 3 Camp. 215, note; Gun-
ton v. Nurse, 2 Brod. & B. 447; Alexander v. Southey, 5 Barn. & Aid. 247;
Burroughes v. Bayne, 5 Hurl. & N. 296; Gonnah v. Hale, 23 Wend. 462. So
if, after dispute as to payments on machine, defendant promises to return
next day if payment had not been made, this is not conversion. Boiling v.
Kirby, 90 Ala. 215, 7 South. 914. And see, generally, as to refusal to deliver.
Banking House v. Brooks, 52 Mo, App. 364; Clay v. Gage, 1 Tex. Civ. App.
661, 20 S. W. 948; Forehand v. Jones, 84 Ga. 508, 10 S. E. 1090; Dent v.
Chiles, 5 Stew. & P. (Ala.) 383; Butler v. Jones, SO Ala. 436, 2 South. 300.
So refusal to deliver until owner paid bill due to third person. Hearn v. Bit-
terman (Tex. Civ. App.) 27 S. W. 158. Refusal to allow an owner to take his
goods away until he paid a debt to a third person (Heam v. Bitterman [Tex.
Civ. App.] 27 S. W. 158), or until a replevin suit had been determined (Ban£:-
ing House v. Brooks, 52 Mo. App. 304) is conversion.

soo If defendant retain a horse for board bill, this is no conversion; but,

Ch. 10] CONVKRSION. 729

proper instructions from the court, passes on the reasonableness of
the qualification.*^® A refusal has been held not to constitute con-
Tersion, although defendant assigned as a reason his inability to de-
liver the property.*'*^ Noncompliance on demand may be sufficient
refusal.*"^ An offer to return the property demanded before the
commencement of trover may cure the refusal, if the refusal be
qualified.*^**

Destruction of Property.

When property is wrongfully dealt with, so that its identity is
destroyed, it is converted. Thus, a railroad company which kills
and uses the animal of another is liable in trover, whether the kill-
ing be negligent or not*®* So, fraudulently obtaining possession
of a note, putting it in judgment, and collecting it constitutes con-
version, although the plaintiff knew the facts before bringing his
action.*®" To apply any process of manufacture to raw material
without the authority of the owner of such material may constitute

if he deny the owner's title, he waives his right to detain the horse, and is
guUty of conversion. Williams v. Smith, 153 Pa. St 4C2, 25 Atl. 1122.

400 McCormick v. Pennsylvania Cent R. Co., 49 N. Y. 303 (et vide SO N. Y.
353); Alexandria v. Southey, 5 Barn. & AdoL 247. Et vide Ingalls v. Bulk-
ley, 15 m. 224; Mount v. Derick, 5 Hill. 455; Blankenship v. Berry, 2S Tex.
44a

401 As where a proprietor who received skates from his patrons, giving a
check therefor, fails to give them up because of his inability to find them.
Donlin v. McQuade, 61 Mich. 275, 28 N. W. 114. See argument for defendant,
puge 276, 61 Mich., and page 114, 28 N. W.; ante, pp. 726, 727; Towne v.

Lewis, 7 C. B. 608.

402 In Davis v. Nicholas, 7 Car. & P. 339, a person lent the goods to an-
oth^, which passed on the latter's death into defendant's possession, who,
on demand, said he should do nothing except what the law required. This
was held to be conversion. In Watkins v. WooUey, Gow. 69, demand and
nondelivery of a "landau" was held to be evidence of conversion. Davies v.
Nicholas, 7 Car. & P. a39.

403 Hay ward v. Seaward, 1 Moore & S. 459; Wells v. Kelsey, 15 Abb. Prac.
53; Savage v. Perkins, 11 How. Prac. 17. Ante, p. 721. note 387.

404 Atchison, T. & S. F. R. Co. v. Tanner, 19 Colo. 559, 36 Pac. 541. And see
Burgess v. Isherwood, 101 Mich. 319, 59 N. W. 602.

406 Rushin V. Tharpe, 88 Ga. 779, 15 S. B. 830. Compare Wittlngbaui v.
Owen, 19 D. C. 277. So, cancellation of certificate of membership in a board
of trade amounts to the act of conversion. Olds v. Chicago Board of Trade,
33 lU. App. 445.

730 WRONGS TO POSSESSION AND PROPERTY. [Ch. 10

conversion/"* The adulteration of liquor destroys its identity, and
may be the basis of an action of trover/®^ It is said, however, that
if the chattel continues to exist as such, any injury done to it is
a trespass, and nothing more. Thus, where the one had sawed a
log of timber, the owner thereof could not recover in conversion.***'
However, the unauthorized use by an agister may amount to a conver-
sion/"® So improperly driving a horse *^® may be conversion. The
wearing of a pearl has been held to be suflScient evidence of conver-
sion.*" On the other hand, mere destruction of property while in
the bailee's hands does not constitute conversion; as where it is
accidentally burned.*^*

406 Com. Dig. "Action; Trover," B.

*07 Richardson v. Atcliison, 1 Strange, 576; Philpott v. Kelley, 3 Adoi. & E.
100. I. e. substitution of water for wine is conversion; but an act done to
preserve goods is not. Dench v. Walker, 14 Mass. 499.

^08 Sinunons v. Lillys tone, 8 Exch. 431. Gf. Sanderson v. Haverstlck, 8 Pa.-
St. 294; O'Reilly v. Sliadle, 33 Pa. St. 489. Castrating a "scrub hog" is not
conversion. Byrne v. Stout, 15 III. 180.

400 Gove V. Watson. Gl N. H. 13G.

410 Still well V. Farwell, 04 Vt. 280, 24 Atl. 243; Wheelock v. Wheelwright,

5 Mass. 104. Impounding a horse in defense of property does not constitute
conversion. Walker v. Wetherbee, 05 N. H. 050-002, 23 Atl. 021. So, driving
a hired horse a greater or different distance than stipulated, although the
Journey was made on the Lord's day. Doolittle v. Shaw (Iowa) GO N. W. 021;
HaU V. Corcoran, 107 Mass. 251; Wheelock v. Wheelwright, 5 Mass. 104;
Homer v. Thwing, 3 Pick. 492; Hart v. Skinner, 10 Vt. 138. But mere delay
is not. Evans v. Mason, 04 N. H. 98, 5 Atl. 700. A short note on the liability
of a hirer for driving a team to places where it was not hired to go. Doolittle
v. Shaw (Iowa) 20 Lawy. Rep. Ann. 300, 00 N. W. 021. And see ante, p. 720,
note 354.

411 Lord Petre v. Heueage, 12 Mod. 519. And see cases collected in note to
Ames, Lead. Cas. 398.

412 Heald v. Carey, 21 Law J. C. P. 97 (and see Bromley v. Cox well, 2 Bos.

6 P. 438; Cairns v. Bleeker, 12 Tei-m R. 300); Jervis v. Jolleffe, 0 Tei-m R. 9;
Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492.

Ch. 10] co^'VERSIo^^ 7ol

SAME-^FABTIES.

230. The parties to the wrongful assumption of owner-
ship involved in conversion are governed by ordi-
nary principles, except, especially, as to cases of —

(a) Joint OTTnership.

(b) Performance of a ministerial duty.

The law as to disabilities is the same in trover as in other torts.
A principal is liable for conversion by his servant.**" One who in-
stigates is as much a principal as he who performs the act oi conver-
sion.*^* An infant *" or a lunatic *^' may be held liable in trover.
A wife holding a mortgage* on the property of her husband may
maintain trover against an officer attaching such property,* ^^ The
liability may arise from a joint wrong, as for wrongfully procuring
a levy on which a sale was made.*^® A defense set up by one joint

*i8 Lee V. McKay, 3 Ired. 29; Powell v. Sattler, Ames, Lead. Cas. 419,
reported In Paley, Ag. 80; Mayer v. Kilpatrlck, 7 Misc. Rep. C89, 28 N. Y.
Supp. 145. As to conversion of property of principal by the agent, see Hol-
brook V. Wright, 24 Wend. 169; WItman v. Fekon, 28 Mo. 601. Cf. Hardman
V. WlUcock, 9 Bing. 382; Story, Ballm. §§ 102, 103. As to liability of agent,
see post, p. 734, "Ministerial Duties."

41* Cone V. Ivlnson (Wyo.) 33 Pac. 31, affirmed 35 Pac. 933; Bigelow Co. v.
Helntze, 53 N. J. Law, 69, 21 Atl. 109.

415 Freeman v. Boland, 14 R. L 39, Chase, Lead. Cas. 200; ante, p. ir)8,
•*Infantg."

"»!« Morse v. Crawford, 17 Vt. 499.

417 As to liability of hnsband and wife In trover at common law, see Draper
V. Fulkes, Yel. 105; Ames, Lead. Cas. 392, and note; Key worth v. Hill. 3
Bam. & Aid. 685; Tobey v. Smith, 15 Gray, 535. And see Handy v. Foley.
121 Mass. 259; ante, p. 216, "Hnsband and Wife." In an action against a
husband for the conversion of bonds, the property of his deceased wife, re-
ciprocal wills of the husband and wife, giving the property of each to the
other, neither of which was in force at tlie time of the wife's death, nor made
any mention of the bonds, are inadmissible (21 N. Y. Snpp. 309, affirmed).
Martin v. HiUen, 142 N. Y. 140, 36 N. E. 803. And see Lewis v. Beckler
<Me.) 12 Atl. 627.

418 Phelps V. Delmore, 69 Hun, 18, 23 N. Y. Supp. 229; Marks v. Wright,
81 Wis. 572, 51 N. W. 882; Gilbert v. Peck. 43 Mo. App. 577; Robertson v.
Hunt, 77 Tex. 321, 14 S. W. 68. As to conspiracy in conversion, see Lock-
wood V. Bartlett, 130 N. Y. 340, 29 N. E. 257. And, generally, as to general

7.32 WRONGS TO POSSESSION AND PROPERTY. [Ch. 1(>

tort feasor avails to all.*** So conversion by one partner, of prop-
erty which came into possession of the firm on partnership account,
is conversion by the flrm.*^® The liability may arise from actual or
implied consent subsequent to the wrong. Thus, the acceptance
by a creditor of the proceeds of a wrongful sale of mortgaged prop-
erty makes him liable in trover to the mortgagee.*^* Wrongdoing
by plaintiff may disentitle him.*^*

Joint Oicners,

There are, however, circumstances which raise questions as to
parties somewhat peculiar to conversion and trespass. Thus, a»
between coteuants, an action for conversion will not lie by one
against the other, so far as the land is concerned.**' This is cer-
tainly true as to the legitimate use of the property ; and the courts-
are averse to construing conduct of the tenant in common into aa
ouster.*** "Short of destruction or something equivalent," one ten-
ant in common may exercise full rights of property over a chattel,,
in defiance of the wishes of the other co-owners.*** But any con-
duct on the part of a cotenant which amounts to an exclusion of the

joint Uability, see Kavanaugh v. Taylor, 2 Ind. App. 502, 28 N. E. 553; Steven-
son V. Valentine, 27 Neb. 338, 43 N. W. 107; Stevens v. Eanes, 22 N. H. 508.
410 Story & I. Commercial Co. v. Story, 100 Cal. 30, 34 Pac. 671.

420 Nlsbet V. Patton, 4 Rawle, 119; Hawkins v. Appleby, 2 Sandf. 421, and
oases cited; Stockton v. Frey, 4 Gill, 406; 1 Colly. Partn. § 449; Gutter v.
Fanning, 2 Iowa, 580; ante, p. 291, **Partuers," note 308. The fact that one
member of a firm of attorneys employed to manage a will contest conspired
with one of the heirs to cheat the othera out of their share of a settlement,
after the money had been paid over to the attorney in fact of the contestinjr
hoii-s, does not render the firm liable for a diversion of the funds, where it
acted in good faith imtil the settlement was made and money paid over.
Richardson v. Richardson, 100 Mich. 364, 59 N. W. 178,

421 Cone V. I Vinson (Wyo.) 33 Pac. 31, and 35 Pac. 933. But may not if
Ignorant of wrong. See Beaton v. Seattle, 63 Vt. 186, 22 Atl. 422. As to
conversion by warehouseman, see Burnham v. Cape Vincent Seed Co., 142
N. Y. 169, 36 N. E. 889.

422 Miller V. Lamery, 62 Vt. 116, 20 Atl. 199. And see Rogers v. Miller^
62 N. H. 131. As to parties according to Interest improperly converted, see
post, p. 737, note 442.

4 23 Stafford v. Azbell, 8 Misc. Rep. 316, 28 N. Y. Supp. 733.
4 24 Jacobs V. Seward, L. R. 5 H. L. 464-472; Parker v. Proprietors of the
Locks and Canals, 3 Mete. (Mass.) 91.
42 6 He may refuse to deliver possession or deny title. Carpentierv.Menden-

Ch. 10] CONVERSION. 733

othera from ownership renders him liable in conversion. A sale of
the whole estate to a stranger is conversion;^** or the seizure of
the whole common crop in denial of the rights of other cotenants.**^
The purchase of an outstanding title, however, inures to the benefit
of th-e whole, and does not constitute ouster.^*® Intention to bene-
fit the common property, as where one tenant in conmion unlawfully
ifuts and removes timber to save it from destruction by fire, is tro-
ver.*** Joint owners may sue third persons for conversion, without
showing the exact interest of each.**^

liall, 28 Cal. 484; Compau v. CJompau, 45 Mich. 367, 8 N. W. 85. Vide ante,
p. 668, note 72. Although not in a suit of law. Greer v. Tripp, 56 Cal. 209.
But adverse possession under claim of title with notice to the cotenant is a
tort. Ante, p. 667, ••Trespass," 13; Chandler v. Ricker, 49 Vt. 128; Ball v.
Palmer, 81 111. 370; Culver v. Rhodes, 87 N. Y. 348; Mayes v. Manning, 73
Tex. 43, 11 S. W. 136; Cummlngs v. Wyman, 10 Mass. 464; English v. Pow-
ell, 119 Ind. 93, 21 N. E. 4.58. Process of manufacture: Fennings v. Lord
GrenviUe, 1 Taunt 241. A sale in market overt is equivalent to a destruc-
tion. Park, B., in Farrar v. Beswick, 1 Mees. & W. 688. But cultivation on
shares does not make owner and cultivator tenants in common as to crops
i-aised. Richards v. Wardwell, 82 Me. 343. 19 AU. 863.

42« Odwn V. Weatliersbee. 26 S. C. 244, 1 S. E. 890; LobdeU v. Stowell, 51
N. Y. 70; Weld v. OUver, 21 Pick. 559, Chase, Lead. Cas. 202; Dyckman v,
Valiente, 42 N. Y. 549; Person v. Wilson, 25 Minn. 189; Browning v. Cover,
108 Pa- St 595; Wheeler v. Wheeler, 33 Me. 347; White v. Phelps, 12 N. H.
382; Davis v. Lottich, 46 N. Y. 393.

*27 Reed V. McRiU, 41 Neb. 206. 59 N. W. 775; Marlowe v. Rogers (Ala.)
14 South. 790. And see Wood v. Noack, 84 Wis. 308, 54 N. W. 7S5.

*28 Jones V. Stanton, 11 Mo. 433; Weaver v. Wible, 25 Pa, St. 270; Bracken
V. Cooper, 80 111. 221; Page v. Branch, 97 N. C. 97, 1 S. E. 625. But see
Peck V. Lockridge, 97 Mo. 549, 11 S. W. 246; Clark v. Crego, 47 Barb. 599.
Where land is conveyed by cotenants to a third person, to be sold by him for
their use, the title to purchase money received by him immediately vests in
the cotenants, entirely unaffected by the statute of uses; and the refusal of
the grantee to pay it over on demand constitutes a conversion. Bork v. Mar-
tin (Super. Buff.) 11 N. Y. Supp. 569.

420 Clow V. Plummer, So Mich. 550, 48 N. W. 795.

*»o As to liability of sheriff for seizing partnership property, see May hew
V. Herrick, 7 C. B. 229. As to liability of pledgee to one of several owners
on refusal to deliver on demand, see Harper v. Godsell, L. R. 5 Q. B. 422;
Atwood V. Ernest, 13 C. B. 881; Wright v. Robotham, 33 Ch. Div. 100; Rob-
ertson V. Gourley, 84 Tex. 575, 19 S. W. 1006. As to action by less than all
of cotenants to enforce rights based on injury to conunon property, see Ney

734 WRONGS TO POSSESSION AND PROPERTY. [Cll. lO

Minigteiial Duties,

Where there has been merely ministerial dealing with goods, the
liability of the agent or servant in conversion has been a matter of
much dispute. Three propositions on the point have, however, been
very clearly enunciated:**^ (1) A defendant is always liable if he
has taken goods as his own and used them as his own. The rule
is that persons who deal with property or chattels, or exercise do-
minion over them, do so at their peril.*^^ Therefore, one who has
innocently taken goods in pledge from a person wrongfully dealing
with them is liable in trover at the suit of the real owner.*** (2)
When a person, though only an agent or a servant, takes part in a
transaction which purports to effect a transfer of property in a chat-
tel, and it turns out that his principal had no title, his ignorance of
this fact does not protect him, for he has clearly intended and
brought about that which is inconsistent with the rights of the true
owner.*** Even an auctioneer or broker who sells property and
pays the proceeds to his principal, who has no title, is liable in
trover to the real owner, although he may have no knowledge of the
defective title or the principal's want of authority.*** (3) If an

v. Mumme, 66 T^x. 2G8, 17 S. W. 407; Lee Chuck v. Quang Wo Cbong, 91 Cal.
51)3, 28 Pac. 45; Bowger v. Cox, 3 Ind. App. 309, 29 N. E. OIG.

*3i Clerk & L. Torts, 180, from which the English illustrations on this sub-
ject are taken. "A merely u)iuisterial dealing with goods at the request of
an apparent owner having the actual control of them appears not to be con-
version." Pol. Torts, p. 293, commenting on Heald v. Carey, 11 C. B. 977, as
being a case where defendant did something that did not amount to a con-
version.

••32 In the celebrated case of Hollins v. Fowler, L. R. 7 H. L. 757, It was
decided that any person who, however innocently, obtains the possession of
goods of another person fraudulently deprived of them, and disposes of them
for his own benefit, or that of any other person, is guilty of conversion. Ac-
cordingly, if a cotton broker, in expectation of finding a customer, buys from
an apparent owner in good faith, and afterwards sells the cotton, he is liable .
to the real owner, tliough he only made a commission. Merchants* & P. Bank
V. Meyer, 56 Ark. 4J*9, 20 S. W. 406.

4 38 McCombie v. Davies, 6 East, 538; Burroughes v. Bayne, 5 Hurl. & N. 296.
And cf. Coleridge. J., in Mennie v. Blake, 6 El. & Bl. 851.

<34 Hoffman v. Carew, 22 Wend. 285; Coles v. Clark, 3 Cush. 399. But see
Spoonor v. Holmes, 102 Mass. 503.

43 5 Everett v. Coffin, 6 Wond. (K)3. Et vide Milliken v. Hathaway, 148 Mass.
69, 19 N. E. 16; Kearney v. Clutton (Mich.) 59 N. W. 419; Hoffman v. Carow,

Ch. 10] CONVERSION. 735

agent intermeddles with the custody of chattels, in ignorance of his
principal's lack of title, and also in ignorance that any alteration of
the property is intended, he is not guilty of a conversion. "The
true proposition as to possession and detention and asportation
seems to me to be that a possession or detention which is a mere
custody or a mere asportation, made without reference to the ques-
tion of the property in goods or chattel, is not a conversion." *'*

If a bailee, asserting no title in himself, restores the property to
the bailor in accordance with the expressed or implied terms of tlie
bailment, before notice or knowledge that the title is in a third per-
son, he is not liable for conversion. To warrant recovery against
him in trover, under such circumstances, it must be shown that it
was his intention to deprive the plaintiff of property in the goods,
or to take it to himself.*^^ On this principle, one who allowed

22 Wend. 285; Courtis v. Cane, 32 Vt. 232; Robinson v. Bird, 158 Mass. 357,
33 N. E. 391; Coles v. Clark, 8 Cush. 399; Abernathy v. Wheeler, 92 Ky. 320,
17 S. W. 858; Taylor v. Pope, 5 Cold. (Tenn.) 413; Perkins v. Smith, 1 Wils. 328.
So a sheriff. Garland v. Carlisle, 4 Clark & F. 693. So a clerk or servant in-
nocently disposing of goods to which his master had no title, under his mas-
ter's direction. Stevens v. Elwall, 4 Maule & S. 259. And see Edgerly v.
Whalan, 106 Mass. 307; Hempfing v. Burr, 59 Mich. 294, 26 N. W. 496;
Morrow Shoe Manuf'g Co. v. New England Shoe Co., 6 C. C. A. 508, 57 Fed.
685.

43« rer Brett, J., in Fowler v. Hollins, L. R. 7 Q. B. 616-030. A succinct
statement of facts and legal principles applied in this celebrated case will be
found at page 348, Pig. Torts. And see Spackman v. Foster, 11 Q. B. Div. 99.
Defendant may be a mere *'conduit pipe in ordinary course of trade." Ab-
bott, C. J., in Green way v. Fisher, 1 C. & P. 190. Cf. Saxeby v. Wynne, 3
Starklc, Ev. (3d Ed.) 1159. So defendant, an attorney, may be a '*strong
l)ox." Canot v. Hughes, 2 Bing. N. C. 448. Payment by a banker of a spe-
ciaUy Indorsed check to a fraudulent indorsee creates liability in conver-
sion. Kleinwort, etc., Co. v. Cornplow, etc., de Paris [1894] 2 Q. B. 157; La
Fayette Co. Bank v. Metcalf, 40 Mo. App. 494; Burditt v. Hunt, 25 Me. 419.
And see Smith v. Colby, 67 Me. 169; Freeman v. Scurlock, 27 Ala. 407; Strick-
land V. Barrett, 20 Pick. 415; Deering v. Austin, 34 Vt. 330. An agent for a
bailee of property is not liable for a conversion thereof by his principal in
which he does not actually participate. McLennan v. Lemen (Minn.) 59 N.
W. 628.

*»7 Koch V. Branch, 44 Mo. 542, and cases considered; Eldridge v. Adams,
54 Barb. 417; Jordan v. Greer, 5 Sueed, 165; Fouldes v. Willoughby. 8 Mees.
& W. 540; Loring v. Mulcahy, 3 Allen, 575: Policy v. Lenox Iron Works, 2
Allen, 182; Hill v. Hayes, 38 Conn. 532. Defendant, however, it is said, is

73G WKONGS TO POSSESSION AND PROPEHTY. [Ch. 10

wheat to be stored in his bam and shipped out by the storer, with-
out knowledge of a replevin suit, which the plaintiff won, is not
liable in trover.*^* A carrier who received goods and delivered them
in accordance with directions of consignor, without notice of adverse
title, is free from responsibility.*'* The exemption of the carrier is
said to rest, not on the special ground of the exercise of public em-
ployment allowing no choice as to refusal or acceptance of goods,
but upon this wider principle. If a common carrier assists in a
wrongful transfer of property, liability will attach.***

liable in conversion, if lie refuses to return plaintiff's goods, altboug:li be
has not used them nor claimed them as his own. The law looks to his ai-Ls
i-ather than to his words. Fothergill v. Lovegrove, 2 Fost & F. 132. Et
vide PUlot V. Wilkinson, 2 Hurl. & 0. 72, 3 Hurl. & C. 345.

*»8 Valentine v. Duff (Ind. App.) 33 N. E. 529; and see Parker v. Lombard,
100 Mass. 405; Spooner v. Holmes, 102 Mass. 503. A commission merchant,
who receives tobacco, and sells the same in regular course of business, with-
out notice of adverse claim, is not liable. Abemathy v. Wheeler, 92 Ky.
320. 17 S. W. 858. Where goods which left a warehouseman were wrong-
fully taken in replevin and sold, the warehouseman, having no knowledge
thereof, was not liable for their conversion. Kearney v. Glutton (Mich.) 59
X. W. 419. If a bailee, having temporary poBsossion of property, holding the
same as the property of the bailor, and asserting no title in himself, and in
pood faith, in fulfillment of the terms of the bailment, either as expressed
hy the party or implied by law, restores tho property to the bailee before
he is notified that the true owner will look to him for it, no action will lie
against him, for he has only done what was his duty. Steele v. Marsicano,
102 Cal. GGO, 3G Pac. 920, collecting and commenting on cases at page 921.
And see Leonard v. Tidd, 3 Mete. (Mass.) 0: (Jurley v. Armstead, 1-18 Mass.
2G7, 19 N. E. 389; Hill v. Hayes, 38 Conn. 532; Nelson v. Ivereon. 17 Ala.
216; Iludmon v. Du Bose, 85 Ala. 446. 5 South. 1G2.

430 Per Willes, J., in Sheridan v. New Quay Co., 4 C. B. (N. S.) 650; Martin.
i5., in Fowler v. Hollins, L. R. 7 Q. B. 032.

4*0 Clerk & L. Torts, 182, referring to Fowler v. Hollins, L. R. 7 Q. B. 616.

Ch. 10] CONVERSION. 737

SAME— REMEDIES.

2281. The wrong involved in conversion may give the

plaintiff:
(a) An option to waive the tort and sue in assumpsiti or

to resort to equity.
(h) A right to sue in detinue.

(c) A right to sue in r^^plevin.^^

(d) A right to sue in trover for damages.

Oon^peMatory Damages.

The extent of plaintiff's recovery of damages is determined by
the nature of his interest. The right of the absolute owner to re-
cover has already been considered. If the plaintiff has but limited
title, he can recover only according to his interest*** The ordi-

441 The first three of these remedies have been already sufficiently dis-
cussed. Ante, p. 351. The institution of a chancery suit by a landlord, pray-
ing for an order restraining a tenant in arrears from removing certain articles
from the premises, the tenant meanwhile remaining in actnnl possession, is
not an act of conversion with reference to those fixtures. Felcher y. Mc-
Millan (Mich.) 61 N. W. 7J)1. The jury may be called on to detenu ine waiver
of tort, and election to proceed on contract Moore v. Hill, 62 Yt. 424, 19 Atl.
907. And see Burroughes v. Bayne, 5 Hurl. & N. 296. Trover and replevin
as concurrent remedies. Below y. Bobbins, 76 Wis. 600, 45 N. W. 416. A
review of the remedy by damages for conversion, compared with that by
trespass and by replevin, will be found in 2 Univ. Law Bev. 67. As to re-
sort to equity, see Thayer v. Manley, 73 N. Y. 305. This was an action for the
conversion of notea Plaintiff, it was held, could have gone into equity, and
have had defendant restrained from disposing of, and compelled to cancel,
them, or he could sue for damages in conversion.

442 Fowler v. Oilman, 13 Mete. (Mass.) 267; Tenney v. Bank, 20 Wis. 152;
Peebles v. Bailway, 112 Mass. 498. As between bailee, pledgee, and mort-
gagee, see note 26 in "Conversion." Further, as to measure of damages be-
tween mortgagor or mortgagee, see Kearney v. Glutton, 101 Mich. 106^ 59
N. W. 419; Bricrly v. Kendall, 17 Q. B. 937; Flanders v. Thomas, 12 Wis.
410;yGravel v. Clough, 81 Iowa, 272, 46 N. W. 1092. Between pledgee and
pledgor, see Johnson v. Stear, 15 G. B. (N. S.) 330. Between vendee and
vendor, see Ghinery v. Viall, 5 Hurl. & N. 288. A mortgagee who wrong-
fully seizes the mortgaged property before condition broken is liable for
the full value thereof where possession cannot be delivered, and not merely
for the value of its use for the time intervening between the seizure and*

LAW OF TORTS— 47

738 WKONGS TO POSSESSION AND PROFKRTY. [Ch. 10

nary measure of compensatory damages in an action for conversion
by a plaintiff who has been deprived of his chattel is the value of
the property at the time of conversion, together with interest, and
any special damages which may be incurred in consequence of the
wrong.**" The value is ordinarily to be taken as of the time of the

the maturity of the mortgage debt. Finley v. Cudd (S. C.) 20 S. E. 32. As
to right of Hen holder to deduct the value of the special property, see Mulli-
uer V. Florence, 3 Q. B. Div. 484; Work v. Bennett, 70 Pa. St. 484. And see
Jarvls V. Rodgers, 15 Mass. 389; Steams v. Marsh, 4 Denio, 227; Wheeler v.
Pereles, 43 Wis. 332; McGalla v. Clark, 55 Ga. 53. As to conversion of books
by canvassing agent, Henry Bill Pub. Co. v. Durgln, 101 Mich, 458, 59 N. W.
812. Action by assignee for benefit of creditors, Abbott v. Chaffee, 83 Mich.
256, 47 N. W. 216. And see Hamm v. Drew, 83 Tex. 77, 18 S. W. 434; Meyer
V. Orynskl (Tex. Civ. App.) 25 S, W. 655. Sale by railroad company on un-
claimed baggage, see McClellan v. Wyatt (City Ct. N. Y.) 11 N. Y. Supp.
686. As to conversion by administrators, Kenyon v. Olney, 61 Hun, 018, 15
N. Y. Supp. 416; Reynolds v. St. Paul Trust Co., 51 Minn. 236, 53 N. W. 457.
Sheriff, Bigelow Co. v. Heintze, 53 N. J. I^w, 69, 21 Ati. 109. Execution
creditor, Wessels v. Beeman, 87 Midi. 481, 49 N. W. 4S3. Surviving partner
and represientatives of deceased, Hawkins v. Capron, 17 R. I. 679, 24 Atl.
466; Russell v. McCall. 141 N. Y. 437, 36 N. E. 498. Vendee of partner.
Kingsbury v. Tharp, 61 Mich. 216. 28 N. W. 74. Attorney. Petrle v. Wil-
liams, 68 Hun, 589, 23 N. Y. Supp. 237. Mortgagee, Brotheiton v. Goldman,
90 Mich. 340, 51 N. W, 508. Second mortgagee. Brown v. Miller, 108 N. C.
395, 13 S. E. 167. Senior mortgagee, Peregoy v. Wheeler, 88 Iowa, 732, 56
N. W. 462; Simpson v. Htnson, 88 Ala. 527, 7 South. 264. And see Brown
V. Miller, 108 X. C. 395, 13 S. E. 167. Between landlord and tenant, Lewis
V. Ocean Nav. & Pier Co., 125 N. Y. 341, 26 N. E. 301; Marlowe v. Rogers
(Ala.) 14 South. 790; Brooks v. Rogers, 101 Ala. Ill, 13 South. 386; Taylor
V. Felder, 5 Tex. Civ. App. 417, 23 S. W. 480. Landlord and vendee of ten-
ant, Finney v. Haiillng. 130 111. 573, 27 N. E. 289, reversing 32 HI. App. 98.
By tenant against landlord for removing trade fixtures, Rosenau v. Sy-
rlng, 25 Or. 386. 35 Pac. 844; Voss v. Bassett (Tex. App.) 15 S. W. 503. Un-
der mining lease, Hartford Iron Min, Co, v. Cambria Mln. Co., 93 Mich.
90, 53 N. W. 4. Between tenants In common, Wood v. Noack, 84 Wis. 398,
54 N. W. 785.

448 Shepard v. Pratt, 16 Kan. 209; Smith v. Bates (Tex. Civ. App.) 27 S. W.
1044; Jefferson v. Hale, 31 Ark. 286; Coffey v. Bank, 46 Mo. 140; Skinner ▼.
Pinney, 19 Fla. 42; State v. Hoi)e, 25 S. W. 893; McCormlck v. Railroad Co.,
49 N. Y. 303. Of. Railway Co. v. Hutchlns, 32 Ohio St 571; Hull v. Davld8<Hi.
6 Tex. Civ. App. 588. 25 S. W. 1047; Perkins v. Marrs. 15 Colo. 262, 26 Pac. 168;
Clerk & U Torts, 199. Where assignors for benefit of creditors, before the aji-
Blgnment, pledge for their own debts collaterals held by them as security for

Ch. 10] coNVEiisioN. 739

wrongful act/** It has been held that a person cannot take any
advantage of increased value given to the chattel by its improve-
ment subsequent to the date of conversion.*** Thus, the normal
measure of damages for conversion of timber has been held its value

debts due them, and the pledgees sell the collaterals so pledged, the measure
of damages of the owners of such collaterals is their market value at the date
of their conversion. In re Jamison & Co/s Estate, 163 Pa. St. 143, 29 AU. 1001;
Appeal of Boyer, Id.; 3 Suth. Dam. § 1109, note 2. As to conversion of note,
plaintiff is entitled to actual, and not face, value. Griggs v. Day, 137 N. Y.
542. 32 N. E. 1001. Cf. Hersey v. Walsh, 38 Minn. 521, 38 N. W. 6130. Et vide
Decker v. Mathews, 12 N. Y. 313. As to conversion of insurance poUcy:
Hayes v. Massachusetts Mut Life Ins. Co., 125 lU. 626, 18 N. B. 322, In an
action for the conversion of a picture left by plaintiff with defendants to be
sold for not less tlian a certain price, he can recover only the actual value of
the picture. Sinnette v. Hoddick, 10 Misc. Rep. 586, 31 N. Y. Supp. 453. As
to loss of title deeds in America, see Towle v. Lovet, 6 2^1ass. 394; Mo wry v.
Wooti, 12 Wis. 413-423; 1 Sedg. Dam. § 262. Defendant may recover loss of
profits from suspension of business caused by wrongful sale of plaintiff's fix-
tures, Haverly v. Elliott, 39 Neb. 201, 57 N. W. 1010; and, generally, loss
occasioned by detention of propeiiy, Moore v. King, 4 Tex. Civ. App. 397,
23 S. W^. 484. Allowance of interest may be in discretion of the jury. State
V. Hope, 121 Mo, 34, 25 S. W. 893. But see Arkansas Val. Land & Cattle Co.
V. Mann, 130 U. S. 69, 9 Sup. Ct 45S.

444 Heinekamp v. Beaty, 74 Md. 388, 21 Atl. 1098; Falk v. B^letcher, 18 C.
B. (N. S.) 403; .Johnson v. Lancashire & Y. Ry. Co., 3 C. P. Div. 499; Hen-
dricks V. Evans, 46 Mo. App. 313. Cf. Ewbank v. Nutting, 7 C. B. 797, with
Burmah Trading Corp. v. Minwi Mahonienl Aally Sherazee, L. R, 5 Ind. App.
130; Douglass v. Kraft, 9 Cal. 502; Hamer v. Hathaway, 33 Cal. 117. As to
fluctuations in value, see post, p. 741, note 451. Consignor may recover from
a common carrier the value of the goods at the time they should have been
delivered to him. Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N.
B. 476, In trover for property, possession of which defendant obtained by
purdmso of plaintiff while the latter was incapable, because of intoxication,
to make a contract, the measure of damages is the difference between the
value of the property delivered and the consideration received. Baird v. How-
ard (Ohio Sup.) 36 N. E. 732.

445 Reid V. Fairbanks, 13 C. B. 692, where it was held that the measure of
damages for conversion of a half-built ship was its value in its unfinished
condition, and not as subsequently completed. As to discretion of the Jury
to find the value at a subsequent time, see Greening v. Wilkinson, 1 Car. &
P. 625; West v. Wentworth, 3 Cow. 82; Ewing v. Blount, 20 Alia. 694; Jenk-
ins V. McConico, 26 Ala. 213; Loeb v. Flash, 65 Ala. 526; 3 Suth. Dam. pp.
509-518.

740 WRONGS TO POSSESSION AND PBOPKKTY. [Ch. 10

when first separated from the freehold, and not the value of the
article into which it may have been converted.**® On the other,
hand, it has been urged that "the right to the improved value in
damages is a consequence of the continued ownership. It would
be absurd to say that the original owner may retaJie the thing by
an action of replevin in its improved state, and yet that he may
not, if put to his action of trespass or trover, recover its improved
value in damages." **^

Much of the confusion and uncertainty as to the measure of dam-
ages in conversion, especially where intentional wrong is involved,
has been removed by Mr. Justice Miller in the celebrated **• case
of Wooden- Ware Co. v. U. S.**® The rule he there laid down for
assessing damages against defendant is: (1) Where he is a will-
ful trespasser, the full value of the property at the time and place
of demand or of suit, but with no deduction for his labor and ex-
penses; (2) where he is an unintentional or mistaken trespasser or
an innocent vendee from such trespasser, the value at the time of
conversion, less the amount which he and his vendor have added to
its value; (3) where he is a purchaser without notice of wrong tvom.
a willful trespasser, the value at the time of such purchase.*'®

««« Where timber of the value of $25 had been, in the exercise of what watf
supposed to be proper authority, converted into hoops of the value of $700,
and in its converted form passed to the party by whose labor in good faith the
change had been wrought Wetherbee v. Green, 22 Mich. 311, discussing at
length and reviewing cases as to what changes of identity wiil prevent a
recovery in specie. And see Beede v. Lamprey, 64 N. EL 510, 15 Atl. 133;
Moody V. Whitney, 38 Me. 174; Penfield v. Sage, 71 Hun, 573, 24 N. Y. Supp.
994; Brooks v. Rogers, 101 Ala. Ill, 13 South. 380; Ellis v. Wire, 33 Ind.
127. As to reimbursing defendant for increased value of property by cut-
ting trees, see Nicklase v. Morrison, 5C Ark. 553, 20 S. W. 414.

*4T SUsbury v. McCJoon, 3 N. Y. 379. And see Nesbltt v. St. Paul Lumber
Co., 21 Minn. 491.

448 This case has been generally followed and approved. U. S. v. Baxter,
46 Fed. 350-353; U. S. v. Windgate, 44 Fed. 129 (coUeeting cases applying the
rule on page 131); Kingory v. U. S., 44 Fed. GG9, 670; U. S. v. Perkins, 44 Fed.
670-674; U. S. v. Mock, 149 U. S. 273-277, 13 Sup. Ct. 848.

4*» 106 U. S. 432.

450 Wright V. Skinner (Fla.) 16 South. 335. On this principle, in Benson Min-
ing & Smelting Co. v. Alta Mining & Smelting Co., 145 U. S. 428, 12 Sup. Ct.
877t it was held that a person who wrongfully works a mine, takes out ores

Gh. 10] CONVERSION. 741

Where property fluctuates in value, as stocks and bonds, plaintiff
has been held entitled to the highest market price between the
time of conversion and the time of trial.* "^ The authorities on this
point are, however, by no means in harmony.**^* Value, in general,
means market value, not the value to the plaintiff.**^' Ordinarily,
the value at the place of the conversion controls; not that in the
wholesale market with an allowance for freight.*** Where the con-
therefrom, removes them, and converts them to his own use is not entitled, in
an action to recover their value, to be credited for the cost of mining the ores.

451 Markham v. Jaudon, 41 N. Y. 235; Burt v. Dutcher, 34 N. Y. 493;
Rosum V. Hodges, 1 S. D. 308, 47 N. W. 140; Romaine v. Van Allen, 26 N. Y;
309; Morgan v. Gregg, 46 Barb. 183; Jaques v. Stewart, 81 Ga. 81, 6 S. E.
815; Wilson v. Mathews, 24 Barb. 295; Plckert v. Rugg, 1 N. D. 230, 46 N.
W. 446; Carter v. Du Pre, 18 S. C. 179; Dimock v. U. S. Nat. Bank, 55 N. J.
Law, 296, 25 Atl. 926. Et vide Baker v. Drake, 53 N. Y. 211; Page v.
Powler, 39 Cal. 412; Waymouth v. Chicago & N. W. Ry. Co., 17 Wis. 550;
Meixell V. Kirkpatrick, 33 Kan. 282, 6 Pac. 241; Seymore v. Ives, 46 Conn.
100; 3 Snth. Dam. § 1118.

*5« Compare Pennsylvania Co. v. Philadelphia, G. & N. R. Co., 153 Pa. St
160, 25 Atl. 1043; Stewart v. Bright, 6 Houst. (Del.) 344; Gresham v. Island
City Sav. Bank, 2 Tex. Civ. App. 52, 21 S. W. 556; President and Directors
of Franklin Bank v. HaiTis, 77 Md. 423, 26 Atl. 523; Andrews v. Clark, 72
Md. 396, 20 Atl. 429,— with cases in note 452. A very clear statement of
what is perhaps the best view of this subject will be found in Huntingdon &
B. T. R. Co. V. English, 86 Pa. St. 247. Et vide Neiler v. Kelly, 69 Pa. St.
408. Where there is no trust relationship between the parties, and no obli-
gation to deliver specific stock at a particular time, the measure of damages
for failure to deliver is the market value on the day when it should have been
deUvered, with interest to the day of trial; but if there be a duty to deliver at
a particular time, and that duty has not been fulfiUed, plaintiff may recover
the highest market value between that time and the time of trial.

*S8 Her V* Baker, 82 Mich. 226, 46 N. W. 377; Beebe v. Wilkinson, 30 Minn.
548-552, 16 N. W. 450. Where the property lias no market value, the damagia
consists of its value to the owner for a particular use, and cost of replacing.
Leoncini v. Post (Com. PI.) 13 N. Y. Supp. 825. In an action for the detach-
ment and removal of saloon fixtures, it is proper to exclude evidence of the
value of the fixtures when removed from their position, and considered with-
out reference to their Intended uses. Grecnebaum v. Taylor, 102 CaL 624,
86 Pac. 957; Suydam v. Jenkins, 3 Sandf. 614-620. Where evidence as to
value is conflicting, the price at which defendant sold the goods converted
may be accepted as true value. Keiley v. Mechanics* & Traders' Bank, 72
Hun, 168, 25 N. Y. Supp. 556.

4B4 Gentry v. KeUey, 49 Kan. 82, 30 Pac. 186.

742 WRONGS TO POSSESSION AND PROFEKTY. [Ch. 10

version occurs at some distance from market, the value at the near-
est market, less the cost of transportation, is the value to be
taken.*"

Special Duma yes.

Where the circumstances are such that a defendant must be
aware that the chattel converted by him is required for some par-
ticular purpose, he may be liable to pay special damages for caus-
ing the failure of that purpose.*"® Thus, in Bodley v. Reynolds *®^
it was held that a carpenter who lost his employment because of the
conversion of his tools might recover for loss of both the employment
and the tools. There is, however, a distinction between special
damages and special value. To entitle one to recover special dam-
ages not forming part of the actual present value of the goods, the
defendant must have some notice of the inconvenience likely to be
occasioned.*** Mere capacity for profitable use is a part of the
value of the chattel; and the loss of such use cannot be a separate
item of damages, for, if so, the plaintiff would be entitled to a dou-
ble recovery pro tanto.****

Nominal Damages.

The damages may be merely nominal. Thus, nominal damages
only can be recovered where the property converted has been at-
tached by a creditor of the owner.**® So, where property came
lawfully into the plaintiff's possession, and remains in the same
condition as before the conversion, he may be compelled to accept

485 Hodson V. Goodale, 22 Or. 68, 29 Pac. 70.

*8« Clerk & L. Torts, 282; Heald v. MacGowaii (Com. PI.) 14 N. Y. Supp,
280; Parsons v. Sutton, 66 N. Y. D2. And, generaUy, see Rank v. Ilank, .1
Pa. St 211; Bennett v. Lockwood, 20 Wend. 222; Mayne, Dam. 200; 2 Sedg.
Dam. c. 14; 2 Greenl. Ev. § 276.

*57 8 Q. B. 779.

*s8 France v. Gaudet, L. R. 6 Q. B. 199. And see The Netting Hill, 9 Prob.
Div. 105, a case of collision, considering loss of market as remote damage.

*5o Reld V, Fairbanks, 13 C. B. 692. As to special damages where prop-
erty has been returned, see Barrelett v. Bellgard, 71 111. 280; Rank v. Rank,
5 Pa. St 211. As to special damages for detention of a horse, for value of
its hire, see Hucklns v. Kapf (Tex. App.) 14 S. W. 1016. Expense of recov-
ery in specie, by prosecution of detinue, of property converted, should be spe-
cially pleaded. Rofs v. Malone, 97 Ala. 529, 12 South. 182.

4«o Jones V. Cobb, 84 Me. 153, 24 Atl. 798.

Ch. 10] COI3VER8ION. 748

it in mitigation of damages which may thus be reduced to a merely
nominal sum.**^

Exemplary Damages.

As to exemplary damages in trover, where the injury has been
inflicted wantonly and inalifinusly, \\w jury is at Hbrrly to <i:iv(\
and it is proper for them to give, damages beyond the mere com-
pensation for the loss or injurj', and exeuii)lary or vindictive in pro-
portion to the degree of malice or wantonness evinced by the act
of the defendant*** When, however, the act which produced the
injury does not appear to have been wanton or malicious, as where
there was a mistake in title,^*' and when the parties came before the
court in the character of bona fide claimants of property honestly
contending for their rights, vindictive or exemplary damages ought
not to be allowed. Indeed, where persons in good faith make an
insufficient or invalid levy, and on discovering their mistake tender
the property back to the person from whom it was taken, leave it
on his premises, and do not thereafter assert any claim to it, they
are liable only for nominal damages, unless the conversion resulted
in injury to the property.***

<••! Blgelow Co. v. Helntze, 63 N, J. Law, 60, 21 Atl. 109. Bt vide Bar^
relett v. BeUgard, 71 IH. 280; Hiort v. London & Northwestern Uy. Co., 4
Bxch. Div. 188. Et vide Farr v. Hunt, 87 Wis. 223, 58 N. W. 377. The court
may stay the action, in whole or in part, if plaintiff obtained redress by de-
livery of chattel and payment of costs. Fisher v. Prince, 3 Pa. St. 1363;
Pickering v. Truste, 7 Term R. 53; Earle v. Holdemess, 4 Bing. 462. And
see Rutland & W. Ry. Co. v. Bank, 32 Vt. 639; 1 Sedg. Dam. (8th E:d.) | 54.
As to transaction equivalent to a retm*n, see Plevin v. Henshall, 10 Bing. 24.
Cf. Edmondson v. Nuttal, 17 C. B. (N. S.) 280.

462 WUde V. Hexter, 50 Barb. 448; NeUer v. Kelly, 60 Pa. St: 403 (collection
of Pennsylvania cases at page 408); Mowry v. Wood, 12 Wis. 413; Allaback
T. Utt, 51 N. Y. 651. Et vide Day v. Woodworth, 13 How. 363; Sedg. Dam.
531.

'«03 So where defendant acted under contract as tho plaintiff's agent. Sio-
cam v. Putnam (Tex. Civ. App.) 25 S. W. 52.

464 Farr v. Hunt, 87 Wis. 223. 58 N. W. 377. A judgment for punitive
damages, in an action for the malicious conversion of certain wheat, peace-
ably taken by defendant under a bona flde claim of title, and by the advice
of reputable counsel, will be set aside, where the only evidence of malice is a
statement, made by defendant at the time, that it was too rich for plaintiff to
litigate with, Abbott v. 76 I^nd & Water Co., 103 Cal. 607, 37 P. 527.

744 NUISANCK. [Oh. 11

OHAFTEB XE.

NUISANCE.

232. Definition.

233. RiglitB Invaded.

234-238. The Annoyance or Interference.

239. Kinds of Nuisances.

240. Public, Private, and Mixed.

241. Continuing.

242. Legalized.

243-244. Parties to Proceedings against.
245. Remedies.

DEFINITION.

232. Nuisance is a distinct civil wrong, consistiner of any-
thing wTongfolly done or permitted -which inter-
feres with or annoys another in the enjoyment of
his legal rights.^

1 This definition is substantially that of Mr. Cooley. Cooley, Torts, § 605.
Perhaps the most that can be said for any definition of nuisance is that it is
not so objectionable as many others. From the nature of the subject, every
one must be unsatisfactory,— perhaps more unsatisfactory tlian the average
legal definition. In an interesting article by L. M. Countryman on "Nui-
sance" in 16 Am. & Eng. Ene. Law« 024-926, a collecUon of definitions will
be found. And see Bish. Noncont. Law, § 411, note 1; Wood. Nuis. § 50 et
seq. Many statutes have undertaken apparently the impossible task of de-
fining a nuisance. A common definition by such statutes is that a nuisance
is anything injurious to health, or indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with comfortable
enjoyment of life or property. The statutes of the various Ptates would in
general seem to be essentially declaratory of the common law. G«l St.
Minn. 1878, p. 820, c. 75, § 44. Cf. Pen. Code Minn, tit 2, § 319 (Gen. St 1894,
§ 0613 et seq.); Rev. St Ind. 1881, §§ 281>-291 (Rev. St Ind. 1894, §§ 290-292);
Steinke v. Bentley, 6 Ind. App. 603, 34 N. E. 97; Indianapolis Water Co. v.
American Strawboard Co., 53 Fed. 970; Code Wash. T. § 1247; Northern Pac.
R. Co. V. Whalen, 149 U. S. 157, 13 Sup. Ct. 822; Sanb. & B. Ann. St. | 3180;
Wendlandt v. Cavanaugh, 85 Wis. 256, 55 N. W. 408; Code Iowa, § 3331;
Downing v. City of Oskaloosa, 86 Iowa, 352, 53 N. W. 256; Harley v. Merrill
Brick Co., 83 Iowa, 73, 48 N. W. 1000. But see Innis v. Cedar Rapids, I. F.

Ch. 11] DEFINITION. 745

The subject of nuisance is one of the oldest heads of the English
law.* The early actions of assize of nuisance and of quod permittat
prosternere were real actions, and were based upon the freehold
title in the plaintiff and the defendant, respectively.'

DislinguiAed fr(m a Purpresture.

A purpresture is "an inclosure by a private party of a part of that
which belongs to, and ought to be open and free to the enjoyment
of, the public at large.^ It is not necessarily a public nuisance. A
public nuisance must be something that subjects the public to some
degree of inconvenience or annoyance, but a purpresture may exist
without putting the public to any inconvenience whatever.'** The
public character of a purpresture appears especially in the remedies
provided by law.* Proceedings in equity to abate a purpresture are
usually upon the relation of the attorney general, and not usually or
necessarily upon information by private parties.^

Disdngmshed from Trespass,

Nuisance is distinguished from trespass. . "The distinction be-
tween nuisance and trespass is that nuisance is only a consequence
or result of what is not directly or immediately injurious, but its

A N. W. Ry. Co., 70 Iowa, 165, 40 N. W. 701; Rev. St Idaho, § 3633; Redway
y. Moore, 2 Idaho, 1036, 29 Pac. 104; Civ. Code Cal. § 34S3; Castle v. SmiUi
(CaL) 36 Pac. «S9; Gardner v. Stroever, 80 Cal. 2G. 20 Pac. 618; Gen. St. Nev.
§ 3273; Fogg v. Nevada C. O. Ry. Co., 20 Nev. 429, 23 Pac. 840; Civ. Code Or.
S 330; Kothenberthal v. City of Salem Co., 13 Or. G04, 11 Pac. 287. And see
Norcross v. Thorns, 51 Me. 603.

* Bigelow, Lead. Cas. 402, contains a learned review of the early history
of nuisance.

3 3 Bl. Comm. H 221, 222; Waggoner v. Jermaine, 45 Am. Dec. 474.

« Black, Law Diet, tit "Purpresture." And see Smith v. McDoweU. 148
111. 51, 35 N. E. 141.

» Attorney General, etc., v. Evart Booming Co., 34 Mich. 462. And see
Moore v. Jackscm, 2 Abb. N. G. (N. Y.) 211.

• As indictment, Reg. v. United Kingdom Electric Tel. Co.. 6 Law T. (N.
8.) 378; or information of Intirusion, Wood, Nuis. § 78.

T 2 Story. Eq. Jur. (13th Ed.) § 924. And see Soltau v. De Held. 9 Eng.
I-aw & Eq. 104: Ewell v. Greenwood, 26 Iowa, 377. See, ali^o, 2 Wat. Tuj.
260; Wood, Nuis. ^ 78-80; 16 Am. & Eng. Enc. Law, 930-942; United States
V. Debs, 64 Fed. 724.

748 NUISANCE. [Ch. 11

without damaging interference. They have been called upon to
adjust abstract right with demands of expediency in connection
with the conditions of modern bnsiness. That the tendency is to be
guided by considerations of convenience and utility, and that the
line of demarcation between what is and what is not nuisance is
often indistinct, are natural results. Accordingly, courts continu-
ally refer questions of nuisance to a jury for determination as a
matter of fact**

BIGHTS INVAPED.

833. The legal rights with which a nuisance interferes may
concern —
(a) Property,

(1) Corporeal, or

(2) Incorporesd; or

(h) Personal enjoyment of health and comfort.

Injury to Corporeal Property,

There is a distinction, it was held in the leading case of St. Helen's
Smelting Co. v. Tipping,^* between an action for a nuisance in re-
spect to an action producing a material injury to the property, and
one in respect to an action producing personal discomfort As
to the latter, a person must, in the interest of the public generally,
submit to the discomfort of the circumstances of the place and
trades carried on around him. As to the former, the same rule
would not apply.*® The nuisance may be to corporeal heredita-
ments. Thus, if one erects a smelting house so near the house of
another that the vapor and smoke kill his corn and grass, and dam-
age his cattle *^ or injure his trees,** this is a nuisance. "So, also,

IS Lake v. MUliken, 16 Am. Rep. 456; King v. Thompson, 30 Am. Rep. 364;
Ayer v. City of Norwich, 12 Am. Rep. 396; Foshay v. Town of Glen Haven,
8 Am. Rep. 73.

i» 11 H. L. Gas. 642 (1865).

20 I^rd Westbury In St. Helen's Smelting Co. y. Tipping, 11 H. L. Cas.

642.

SI By lead smelting works, Hale, Fitzh. Nat Brev. 184, quoted hi 3 Bl.
Oomm. p. 218; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W.

785. .
» By copper smelting works, St. Helen's Smelting Works y. Tipping, su-

Ch. 11] RIGHTS INVADED. 749

if my neighbor ouj?ht to scour a ditch, and does not, whereby my
land is overflowed, this is an actionable nuisance." *' Overhanging
eaves, from which water flows on another's premises, constitute a
nuisance.^* Corrupting the air with offensive smells,*** or disturb-
ing the adjoining property with distressing noises on adjoining
premises, may constitute a nuisance.** By way of contrast, an occu-
pant of land is under no duty to his neighbor to cut thistles natural-
ly growing on his own land, to prevent them from seeding; and if,
because he neglects to cut them, seeds are blowix on his neighbor's
land, to the latter's damage, there is no liability.*^

Incorporeal Property — Ivjury to Easement of Light and Air,

A nuisance may affect incorporeal hereditaments. There is no
right, ex jure naturae, to the free passage of light and air to a house
or building. Light and air are not subjects of property, beyond the
moment of actual occupancy.** At common law, when windows had
subsisted at a particular place for a long time, they were said to be
ancient; and, if the adjoining landowner constructed a building so
as to interfere with such ancient lights, his wrong fell short of a

pra, note 20. Noxious gases from burning brick, Bamf ord v. Tumley, 3 Best &
B. 02-66; Fogarty v. Junction City Pressed-Brick Ck)., 50 Kan. 478, 31 Pac.
1052; Barley v. MerrUl Brick Co., 83 Iowa, 73. 48 N. W. 1000. And see
Campbell v. Seaman, 63 N. Y. 568; Demarest v. Hardbam, 34 N. J. Eq. 469;
Pennoyer v. AUen, 56 Wis, 502, 14 N. W. 609; Bohan v. Port Jervis Gas-
Ught Co., 122 N. Y. 18, 25 N. E. 246.

ss Hale, Fitzb. Nat. Brev. 183, note a. And see 3 Bl. Comm. § 218; post, p*
754, note 48.

" Fitzb. Nat. Brev. 184; BattishiU v. Reed, 18 C. B. 696; Hazeltine v. Edg-
mand (Kan. Sup.) 10 Pac. 544; Gould y. McKenna, 27 Am. Rep. 705.

SB3 BL Comm. 217; Smiths v. McConathy, 11 Mo. 517.

>« Fish V. Dodge, 4 Denio, 311 ; Sparhawk v. Union Passenger Ry. Co., 54
Pa. St 401. As a dog howling by night, Street v. Gugell, Selw. N. P. (13th
Ed.) 1090; Brill v. Flagler, 23 Wend. 354. A review of the English authori-
ties as to nuisance to dwelling house, especially as to the measure of an-
noyance which may be inflicted without damage, will be found reviewed in
53 J. P. 817.

ST ones Y. Walker, 24 Q. B. Div. 656.

s8 Guest y. Reynolds, 68 IlL 478» Chase, Lead. Cas. 1. And see Yates v.
Jack, 1 Ch. App. 295.

750 NUISANCE. [Ch. 1 1

trespass, for there was no yiolation of another's possession or lands.
The injury was recognized as a nuisance.** But the rule was other-
wise as to air. In America, however, the doctrine of easement of
light and air over the land of another has not been generally ac-
cepted as arising by prescription,*^ although the easement may be
created by grant.'* Accordingly, interference with another's light
and air does not ordinarily constitute a nuisance. 'T>epriving one
of a mere pleasure, as of a fine prospect, by building a wall or the

2» Aldred's Case, 9 Coke, 58. Extent of right wiU be found accurately
stated by James, I.. J., In Kelk v. Pearson, 6 Ch. App. 809-811. Et vide Par-
ker V. Smith, 5 Car. & P. 438; Wells v. Ody, 7 Car. & P. 410; Dent v. Auc-
tion Mart Co., L. II. 2 Eq. 238. Extent of obstruction is always a question of
fact, which depends upon the evidence in each case. The fact that an obstruc-
tion leaves 45 degi'ees unobstructed may be evidence showing no occasion
for interference by court. Compare Parker v. First Ave. Hotel Co., 24 Ch.
Div. 282, with City of London Brew»y Co. v. Tonnant, 9 Ch. App. 212.
Generally, as to acquisition and obstruction, see Tapling v. Jones, 11 H. I^.
< 'as. 290; Arcedeckne v. Kelk, 2 GiflC. 683; Stalght v. Burn, 5 Ch. App. 163.
An article on the obstruction of ancient lights, with a review of the recent
oases in relation tliereto, J. P., republished in 29 Ir. Law T. (N. S.) 755-757.
See, however, as to wind for whidmUl, Webb v. Bird, 13 C. B. (N. S.)
841; air for chimneys, BiTant v. Lefever, 4 C. P. Div. 172. A short review
of the variety of questions arising as to the obstruction of lights, especially
when premises are rebuilt and in an altered form, will be found in 58 J. P.
649.

80 Mullen v. Strieker, 19 Ohio St 135; Mahau v. Brown, 13 Wend. 261;
Parker v. Foote, 19 Wend. 309; Haverstick v. Sipe, 33 Pa. St. 368; Pierre v.
Femald, 26 Me. 436; RandaU v. Sanderson, 111 Mass. 114; Jenks v. Williams,
115 Mass. 217; Ward v. Neal, 37 Ala. 500; Hubbard v. Town, 33 Vt 295;
Kelper v. Klein, 51 Ind. 316; Turner v. Thompson, 58 Ga. 268; Cherry v.
Stein, 11 Md. 1; PoweU v. Sims, 5 W. Va. 1. See note to Story v. Odin, 7
Am. Dec. 46-49; Knabe v. LeveUe (Super. N. Y.) 23 N. Y. Supp. 818. Au-
thorities on the easements of light and air will be found collected in Keating
V. Springer, 37 Am. St. Rep. 175-184 (146 lU. 481, 34 N. B. 805). See Lindsey
V. First Nat Bank, 20 S. E. 621; Knabe v. LeveUe (Super. N. Y.) 23 N. Y.
Supp. 818; Levy v. Samuel (Super. N. Y.) 23 N. Y. Supp. 825; Western Granite
& Marble Co. v. Knickerbocker, 103 Cal. Ill, 37 Pac. 192. Nor will such ease-
ment be applied as to land of lessor by the lease of a building to be used for
a purpose requiring light, such as marble cutting. Keating v. Springer, 146
lU. 481, 34 N. B. 805.

81 Keats V. Hugo, 115 Mass. 204. The grant may be expressed or implied.
Corapton V. Richards, 1 Price, 27.

Ch. 11] RIGHTS INVADKD. ^ 751

like, as it abridges nothing really convenient or necessary, is no in-
jury to the sofferer, and is, thei'efore, not an actionable nuisance." ^*

.Stithy— Support.

At common law, depriving a neighbor of the subadjacent or ad-
jacent support necessary to sustain his land in its natural and unin-
cumbered state, by use of one's own land to the neighbor's damage,
was an actionable wrong.'* The right of lateral support existed
only in favor of land unweighted by buildings; and no action lay
without proof of appreciable damages.'* Liability under such cir-
cumstances depends on the negligence of the defendant in removing
adjacent soil. If the weight of buildings prevented his making thi*
excavation, carefully, without damage, there in no liability.'* There
is, it is insisted,'* no such thing as an absolute right to supiM)rt,
but there is a qualified right entitling every man to have his soil

" Aldred's Case, 9 Coke, 58, referred to In 3 Bl. C'omni. fi 217. Nor is ol>-
Kt meting view of hotel from depot, diverting travel, acUimablc. Stufflebeaiii
V. Montgomery, 2 Idaho, 763, 20 Pac. 125. Et vide Hay v. Wc'Iht, 70 WI».
587, 48 N. W. 869.

ss Humphries v. Brogdcn, 12 Q. B. 7:it>; Bonomi v. Backlioiiso. 28 Law J.
Q. B. 378: Farrand v. MarshaU, 19 Barb. 380, 21 Barb. 409; Lasala v. Hoi-
brook, 4 Paige, 169; McGulre v. Grant, 25 N. J. Law. 356; Ulchardson v.
Vermont Cent Ry. Co., 25 Vt. 465; Stlmmel v. Brown. 7 Hoiwt. (Del.) 219.
30 AtL 996; Shrleve v. Stokes, 8 B. Mon. 453; Moody v. MH'lelland, 3:>
Ala. 45; Louisville & N. R, Co. v. Bonhayo, 94 Ky. 67, 21 S. W. 526; Cnrr
V. Hundley, 3 Colo. App. 54, 31 Pac. 939; Parke v. City of Seattle, 5 WaHh.
1, 31 Pac. 310. and 32 Pac. 82; Steams* Ex'r v. City of Klchmond, 88 Vii.
992, 14 8. E. 847. As to measure of damages, soe McGettigan v. Potts. 149
Pa. St 155, 24 Atl. 198; IJlrlck v. Dakota Ix)an & Trust Co. (S. !).> 51 N. W.
1023; Oonboy v. Dickinson. 92 C'al. 600, 28 Pac. 809.

»* Smith v. Thackerah. L. U. 1 C. P. 564; Wyatt v. Harrison. 3 Barn. &
Adol. 871; Thurston v. Hancock, 12 Mass. 220; Chase, Lead. Cas. Torts, 23;
Stone v. Hunt, 94 Mo. 475. 7 S. W. 431.

s ft As to negligence in excavating without noticv. s(.m» Schultz v. Byers, 53 N.
J. Law, 442. 32 Atl. 514; City of Covington v. Goylor (Ky.) 19 S. W. 741; TJl-
ridK V. Dakota Loan & Trust Co. (S. D.) 49 N. W, l(K>4; First Nat Bank of
San Francisco v. Villegra, 512 Cal. 600, 28 Pac. 97; Conboy v. Dickinson, 92
Cal. 000, 28 Pac. 800. Generally, as to the duty of owner in making excava-
tion, see editorial note, Schultz v. Byors, 13 Lawy. Rep. Ann. 569. Bt vide
Stone V. Hunt 94 Mo. 475, 7 S. W. 4;n; Ix>ui8vllle & X. R. Co. v. Bonhayo, 94
Ky. 67, 21 S. W. 526; Moellering v. Evans, 121 Ind. 195, 22 N. E. 980.

s« Ante, c. 1.

752 NUISANCE. [Ch. 11

left intact, that no removal of the adjoining soil can be made so as
to disturb the integrity of the soil of others." It is, however, abso-
lute in the sense that negligence in the removal of the support need
not be shown.' •

On the other hand, buildings are not deprived of this qualified
right to support unless they sensibly increase the pressure on the
lands. This is a logical application of the requirement of the con-
nection as cause. Where the structures do not contribute to the
injury, there is no reason why they should affect the plaintiff's right
to recover.'* But the right to support of land weighted by buildings
may be acquired by grant and modeled by statute.*® A grant may
be implied, as well as express, as in Rigby v. Bennett,** where a
man granted part of his land for a building. In England, such right
to support of land may also be acquired by prescription.** The
soundness of this doctrine has been strenuously denied,*' and it
would seem that the better opinion is that the erection of a building

BTWood. Nuls. § 172.

88 Nichols V. City of Duluth, 40 Minn. 389, 42 N. W. 84; Schultz v. Bowe»
(Minn.) 59 N. W. 631. Compare City of Covin^on v. Geylor (Ky.) 19 S. W.
741; Schultz v. Byers, 53 N. J. Law, 442, 22 Atl. 514. As to malice as an ele-
ment, see Conboy v. Dickinson, 92 Cal. 600, 28 Pac. 809. But the right of an
owner of a building to take down or change any foundation, wall or other part
thereof, without being answerable for the consequent injury to his neighbor's
building, attached thereto, is subject to the qualification that he will be liable
in damages if the injury to his neighbor is occasioned by the negligent manner
in which the work is performed. Leavenworth Lodge No. 2 v. Byers, 54 Kan.
323, 38 Pac. 261.

39 Wood, Nuis, §§ 177, 178, collecting cases; Victor Mln. Co. v. Morning Star
Min. Co., 50 Mo. App. 525.

40 Sullivan v. Zeiner, 98 CaL 346, 33 Pac. 209; Jencks v. Kenny (Super. N.
Y.) 19 N. Y. Supp. 243.

*i 21 Ch. Div. 559. When the owner of land sells a part thereof, he im-
pliedly grants to the grantee all those apparent easements which are necessary
for the reasonable use of the part granted, and which are, at the time of the
grant, used by the owner of the entirety, for the benefit of the part granted.
Lampman v. Milks, 21 N. Y. 505. As to party walls, see Heartt v. Kruger,
121 N. Y. 386, 24 N. E. 841; Rogers v. Sinsheimer, 50 N. Y. 646; Briggs v.
Klosse, 5 Ind. App. 129, 31 N. B. 208.

42 Dalton V. Angus, L. R. 6 App. Cas. 740; Lemaitre v. Dayis, 19 Ch. Div.
281. But see Solomon v. Master, etc., of Vintners' Co., 4 Hurl. & N. 585.

48 Wood, Nuis. § 200.

Oh. 11] RIGHTS INVADED. 753

wholly on one's own land is not the basis of a prescriptive right to
have it supported by the soil of the adjacent owner, since no injury
is inflicted on the latter, on which he could base an action to secure
the removal of the building.**

As to subjacent support, the rule is, where one possesses the sur-
face and another the subsoil, the former has a right to such support
from the lower strata as will suffice to maintain the surface in its
natural state, i. e. unburdened by buildings; and the owner of the
surface may not dig into the subsoil beyond what is necessary for
the cultivation of the land or its proper enjoyments.* ** The natural
rights of the parties may, however, be varied by contract or by cus-
tom.**

Same — Interference with Water Rights.

Every proprietor has a right to the continued flow of a natural
stream running through his land, and to the use of its water to a
reasonable extent. He may not accumulate it so as to overflow
lands above him, nor seriously lessen the quantity of water which
would naturally descend, or deflle it so as to render it unfit for use.*^
What is reasonable use of running water is a question for the jury.

*« SulUvan v. Zelner, 98 Cal. 346, 33 Pac. 209; Handlam v. McManiw, 42 Mo.
App. 551.

*» Ball, Torts, 43; Humphries v. Brogden, 12 Q. B. 739; CJox v. Glue, 5 O. B.
533; Harris v. Ryding, 5 Mees. & W. 60; Wilms v. Jess, 94 lU. 464, 485 (per
Scholfield, J., collecting cases); Marvin v. Brewster Iron Min. Co., 55 N. Y. o38;
Coleman v. Chad wick, 80 Pa. St. 81; Yandes v. Wright, 66 Ind. 319; Wakefield
V. Duke of Buccleuch, L. R, 4 Eq. Cas. 624, L. R. 4 H. L. 377; Hartwell v.
Camman. 10 N. J. Eq. 128; Stewart v. Chad wick, 8 Iowa, 463; Caldwell v.
Copeland, 37 Pa. St. 427.

«« Hilton V. GranvUle, 5 Q. B. 701. But see Harris v. Ryding, 5 Mees. *:
W. 60.

«T BaU, Torts, 43. A review of recent decisions as to the law of easements
in running waters, J. P., reprinted in 28 Ir. Law T. 44S. Wood, Nuis. c. 8
(nuisance relating to water, especially', §§ 345, 349, 356). The right of the pro-
prietor of the land is not measured by the demands of his business. '*The
necessities of one man*s business cannot be the standard of another's rights
In a thing which belongs to both." Per Black, J., in Wheatley v. Chrlsman,
24 Pa. St 298, 302; MarshaU v. Peters, 12 How. Prac. (N. Y.) 218; Black,
Pom. Water Rights; Middleton v. Pritchard, 3 Scam. (lU.) 510; City of Chicago
V. Laflin, 49 111. 172; 3 Kent, Comm. 427; 2 Hil. Real Prop. 02; Ang. Water
f "ourses, § 5.

UkW OF TORTS— 48

754 NUISANCE. [Oh. 11

Thus, the erection and maintenance of a dam, flooding the land
above, is a nuisance, rendering the wrongdoer liable in nnisance for
damages to all persons whose lands are flooded.** An obstruction
of a stream may give a cause of action for damages; as where a
railroad company, by blasting, created a fill or bar in a stream, in-
juring a mill.** As to what constitutes use to a reasonable extent,
the authorities are not agreed. Ordinary use of water ad lavan-
dum et potandum for domestic purposes and for cattle is a reasonable
use, but the question is largely for the jury."® A riparian owner may,

4 8 Butz V. Ihrie, 1 Rawle, 218; Strout v. MiUbrldge, 45 Me. 76; Wheatley v.
Chrisman, 24 Pa. St. 298; Payne v. Kansas City, St. J. & O. B. R. CJo., 112 Mo.
G, 20 S. W. 322; Knight v. Albemarle &. B. R. Co., Ill N. C. 80. 15 S. B. 929;
Wallace v. Columbia & G. R. Co., 37 S. C. 335, 16 S. B. 35. But the erection
of the frame of a miUdam, which, when completed, will pond the water back,
and thereby create a nuisance, does not itself constitute a nuisance. Statd v.
Suttle, 115 N. C. 784, 20 S. E. 725; Stout v. McAdams, 3 lU. 67; Brown v.
Bowen, 30 N. Y. 519. Et vide Ellis v. Clemens, 21 Ont 227; Hartshorn v.
Chaddock, 135 N. Y. 116, 31 N. B. 997; Krug v. St. Mary's Borough, 152 Pa.
St 30. 25 AtL 161; Paine Lumber Co. v. U. S., 55 Fed. 854; Dunman v. Gulf,
C. & S. F. R. Co. (Tex. Civ. App.) 26 S. W. 304. The wrong may also be re-
garded as a trespass. McKee y. Delaware & H. Canal Co., 125 N. Y. 353,
26 N. E. 305, affirming (Sup.) 4 N. Y. Supp. 753; Wharton v. Stevens, 84 Iowa;
107, 50 N. W. 562; Glass v. Fritz, 148 Pa. St 324, 23 Atl. laW; Barden v. City
of Portage, 79 Wis. 120, 48 N. W. 210; McKee v. President etc., of Delaware
& H. Canal Co., 125 N. Y. 353, 26 N. E. 305; McGee v. Fox, 107 N. C. 768, 12
S. E. 369; ante, p. 749, note 2:i; Irwin v. Janesville Cotton Mills, 88 Wis. 429.
GO N. W. 786; Clement Manuf'g Co. v. Wood, 162 Mass. 173, 38 N. B. 444.

*» Watts V. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. E. .521. As to ob-
struction of water course by railroad embankment, see Uhio, etc., Ry. Co. v.
ThiUman, 43 111. 127. As to obstruction by booms, see Stevens Point Boom
Co. V. ReiUy, 46 Wis. 237, 49 N. W. 978. By a city in constructing a smaU
sewer, see Orchard Place Land Co. v. Brady, 53 Kan. 420, 36 Pac. 728. As to
injunction to restrain obstruction of water course, see Spargur v. Heard, 90
Cal. 221, 27 Pac. 198; Kerr v. West Shore R. Co., 127 N. Y. 2(J9, 27 N. E. 8:«.
Further, as to obstruction, see Ferris v. Wellborn, 64 Miss. 29, 8 South. 165;
Kankakee & S. R. Co. v. Horan, 131 111. 288, 23 N. E. 621; Mississippi & T.
R. Co. V. Archibald, 67 Miss. 38, 7 Soutli. 213. As to action to restrain ob-
struction, see Atchison, T. & S. F. R. Co. v. Long, 46 Kan. 701, 27 Pac. 182;
Hoyt V. Cline (Sup.) 15 N. Y. Supp. 3:^7. Compare JoUiffe v. Chesapeake &
O. R. Co. (Va.) 20 S. B. 781, with Fleming v. Wilmington & W. R, Oa, 115
N. C. 676, 20 S. E. 714.

BO Washb. Basem. 213, 220; Wadswurth v. Tillotsou, 15 Conn. 369; Wood.
Nuis. I 356.

Ch. 11] RIGHTS INVADED. 755

without regard to the necessity of the lower owner, take water from a
stream, even to the exhaustion of the wliole supply; ^"^ but this prop-
osition has been doubted." 'Indeed," said Mr. Wood, "he may use
it for any ordinary purpose of life, but his use must be such as not
to interfere measurably with the rights of those above or below
him on the stream." ** Tlie use of water for any purpose not do-
mestic, such as irrigation or manufacturing, sensibly diminishing the
volume of the stream, is a nuisance.*** Use of water from a running
stream by a railroad company, although essential to the operation
of its road, is not a domestic use, and damages may be recovered
for such diversion, so far as they actually concern the employment
of the land, but not for an unused water power.** The owner of
the fee abutting on a running stream is entitled to take ice there-
from, if the taking does not interfere with navigation, or with the
use of the water for hydraulic or other rightful purposes.'* Diver-
sion of water may be a wrong *^ which may be restrained,** and be

»i Clerk & L. Torts, 294; Lord Klngsdown in Miner v. Gllmour, 12 Moore,
P. O. 131-156.

»* Lord Norbury v. Kitchin, 9 Jur. (N. S.) 132.

»» Wood, Nuls. § 345.

»4 Directors, etc., of Swindon Waterworks Co. v. Proprietors of Wilts &
B. Oahal-Nav. Co., L. R. 7 H. L. 697. But the diversion of smaU quantites
of water for irrigating, when water was more than sufficient for use of mill,

whl(^ water was returned into the stream above the miU, except the inap-

«

preciable quantity absorbed, it was held not such an unreasonable use of
water as was prohibited by law. Embrey v. Ow«n, 6 Exch. 353. And see
Washb. Easem. c. 3, § 2.

SB Clark V. PennsylYania R. Co., 145 Pa. St 438, 22 Atl. 989. Et vide At-
torney General v. Great Eastern R. Co., 18 Wkly. Rep. 1187. A railroad com-
pany is liable for total diversion of a water course in the construction of its
road. Atchison, T. & S. F. R. Co. v. Long, 46 Kan. 701, 27 Pac. 182.

s« Edgerton v. HuflT, 26 Ind. 35. As to rights of riparian proprietors to ice
in streams, see 51 Law T. 23. Brown y. Cunningham, 82 Iowa, 512,
48 N. W. 1042; Marsh v. McNider. 88 Iowa, 390, 55 N. W. 469; Concord
ManuTg Co. v. Robertson (N. H.) 25 Atl. 718; Howe v. Andrews, 62 Conn.
398, 26 At!. 394; Sowles v. Moore, 65 Vt. 322, 26 Ati. 629; Allen v. Weber,
80 Wis. 531, 50 N. W. 514.

57 Webb V. Portland Manufg Co., 3 Sumn. 180, Fed. Cas. No. 17,322; Kim-
bwly & Clark Co. v. Hewitt, 79 Wis. 334, 48 N. W. 373; Blanchard v. Baker,
8 Me. 253.

»» Mott V. Bwing, 90 Cal. 231, 27 Pac. 194; Conkling v. Pacific Imp. Co..
87 Cal. 296, 25 Pac. 399.

756 NUISANCE. [Ch. 11

the basis of an action for damages. •** Diversion of water for pur-
poses of irrigation and mining in Western states depends largely
upon statutory regulations, especially as to prior appropriation.*®
Substantial pollution of a stream by discharging foul matter into
it may be a nuisance."^ "Care must be taken to distinguish be-
tween the natural and necessary development of land itself, and in-
jury resulting from the character of some business not Incident and
necessary to the development of the land or other substances lying
within it. The owner of the land has the right to develop it by
digging for coal, iron, gas, oil, or other minerals; and if, in progress
of these developments, an injury occurs to the owner of adjoining
lands, without fault or negligence on his part, an action for such
injury cannot be maintained. If this were not so, a man might be
utterly deprived of the use of his property." It is not so where the

B» Van Bibber v. Hilton. 84 Cal. 585, 24 Pac. 308. 598; Fleming ^ Railroad
CJo., 115 N. C. 676, 20 S. E. 714; New York Rubber Co. v. Rothery, 57 Hun
(N. y.) 590, 10 N. Y. Supp. 872; WiUiams v. Fulmer, 151 Pa. St. 405, 25 Ati.
103, affirming 122 Pa. St 191, 15 Atl. 726.

«o McGee Irrigating Ditch Co. v. Hudson (Tex. Sup.) 22 S. W. 967; Bar-
rows V. Fox (Cal.) 30 Pac. 768; Id., 98 Cal. 63, 32 Pac. 811; Southern Pac. R.
Co. V. Dufour, 95 Cal. 615, 30 Pac. 783; Oppenlander v. Left-Hand Ditch Co.,
18 Colo. 142, 31 Pac 854; Healy v. Woodruff, 97 Cal. 464, 32 Pac 528; Conant
V. Jones (Idaho) 32 Pac 250; Cole v. Logan, 24 Or. 304, 33 Pac 568; Salina
Creek Irr. Co. v. Salina Stock Co., 7 Utah, 456, 27 Pac 578; Chlatovich v.
Davis, 17 Nev. 133, 28 Pac. 239; Shotwell v. Dodge, 8 Wash. 337, 36 Pac.
254; Taylor v. Abbott, 103 Cal. 421, 37 Pac 408. GeneraUy, as to appropria-
tion of water for mining or irrigation, see Isaacs v. Barber (Wash.) 38 Pac
871; Wimer v. Simmons (Or.) 39 Pac 6. As to diversion from canal for
water power, see Green Bay & M. Canal Co. v. Kaukauna Water-Power Co.
(Wis.) 61 N. W. 1121.

fli Wood V. Aud, 3 Exch. 748; Hodgkin v. Ennor, 4 Beat & S. 229. As to
discharge of sewage into stream, see Bainard v. City of Newton, 154 Mass.
255, 27 N. B. 995. As to liquor distillery, see Price v. Lawson, 74 Md. 499, 22
AtL 206. See an interesting article on ability of riparian owner to recover
against one of several persons who has poUuted stream above him. 96 Law
T. 503; ante, p. 213, "Joint Tort Feasors." Befouling stream by cattle drop-
pings. Barton v. Union Cattle Ck)., 28 Neb. 350, 44 N. W. 454; dumping refuse,
Easton & A. R. Co. v. Central R. Co., 52 N. J. Law, 267, 19 Atl. 722; pollu-
tion by gas works, Pensacola Gas Co. v. Pebley, 25 Fla. 381, 5 South. 593;
Pottstown Gas Co. v. Murphy, 39 Pa. St. 257; Laing v. Whaley, 3 HurL & N,
675.

Ch. 11 J RIQHTS INVADED. 757

injury is caused by the prosecution of a business which, has no nec-
essary relation to the land itself, and is not necessary to its devel-
opment. It was accordingly held that where a pipe-line company
carried oil from a distance, and allowed it to escape and percolate
through another's land, and destroy his springs, the company is lia-
ble in damages."* A prescriptive right to use a stream in a man-
ner amounting to a public nuisance cannot be acquired so as to be
a defense to an action by a private pai-ty, especially injured there-
by, to enjoin the maintenance of such wrong.** On the other
hand, where mine water, with the impurities it had absorbed from
the earth and minerals in the mines, flowed or was pumped from
them, and allowed to take its natural course, the owner of the mines
was not liable for damages produced, because the flow of such water
was the natural and necessary result of the development by the
owner of his own property."*

Same — Inierjerence with Percckiiing, Subterranean^ and Artificvil Waters.

It is not material, so far as to wrongs of befouling water is con-
cerned, whether the damage is done to a defined water course, or wa-
ter which has merely percolated."** Therefore, the pollution of a well

«« Hauck V. Tidewater Pipe-Line Co., 153 Pa. St. 366-375, 26 Ati. 644, dis-
tlnjriilshlng Pennsylvania R. Ck). v. Lippincott, 116 Pa. St 472, 9 Atl. 871;
Pennsylvania R. Ck>. v. Marchant, 119 Pa. St 541, 559, 13 Atl. 690; Pottstown
Gas Co. V. Murphy, 39 Pa. St. 257; Robb v. Carnegie, 145 Pa. St 324, 22 Atl.
649; Pennsylvania Coal Co. v. Sanderson, 113 Pa. St 126, 6 Atl. 453. Et vide
Kinnalrd v. Standard OU Co., 89 Ky. 468, 12 S. W. 937.

•8 Bowen V. Wendt, 103 Cal. 236, 37 Pac. 149.

•4 Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. 453; Id., 102
Pa. St. 370, 86 Pa. St 401, 94 Pa. St 302. A discussion of this doctrine will
be found In an able article by Mr. J. M. Gest, on the "Natural Use of Land,"
in the January and February numbers, 1894, of 1 Am. Law Reg. & Rev. pp. 1,
97. The doctrine of Pennsylvania Coal Co. v. Sanderson was repudiated by
Young V. Bankier Distillery Co. [1893] App. Cas. 691. See March numiber, 1894,
1 Am. Law Reg. & Rev. 254. As to injuiy between owners of adjoining mines,
see Smith v, Kenrick. 7 C. B. 515; Baird v. Williamson, 33 Law J. C. P. 101.
A sanitarium may use water for bathing patients, and allow It, so polluted,
to flow into a stream, and thus damage an adjoining owner, there being no
negligence or malice. lUiruanl v. Shirley (June, 1893; Ind. Sup.) 34 N. E. 600.

•sWomersley V. Church, 17 Law T. (N. S.) 190; Snow v. Whitehead. 27
Ch. Div. 588; Ballard v. Tomlinson, 54 Law J. Ch. 454. A fortloii, where a
city's sewers pollute a stream going underground, through seams and fissures

768 NUISANCE. [Ch. 11

is a nuisance.*® But any person may appropriate the whole of wa-
ter percolating through or under his land.*^ On the other hand,
there is no liability on the part of the landowner •* for merely in-
tercepting the percolation of water into a well.** There is differ-
ence of opinion as to whether such appropriation is actionable if
it be malicious.^® No right to such percolating water can be ac-
quired by prescription, because of the indefiniteness of the right and
the inability of the servient owner to prevent the user by which the
right is claimed to be acquired.^ ^ But where the water is subterra-

in the limestone bed of the stream, the owner of a farm- whose watera are
rendered unfit for use may recover damages. Good v. Altoona City, 162 Pa.
St 493, 29 Atl. 741.

•« Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925. Compare DUIon
V. Acme Oil Co., 49 Hun (N. Y.) 565, 2 N. Y. Snpp. 289. The American au-
thorities are not, however, in harmony on the point. As to waters polluted
by a cemetery, compare City of Greencastle v. Hazelett, 23 Ind. 186; Ball v.
Nye, 90 Mass. 582. The liability may arise fi-om negligence. Collins v. Char-
tiers Val. Gas Co., 131 Pa. St. 143, 18 Ail. 1012; Id., 139 Pa. St 111, 21 Atl.
147.

67 New River Co. v. Johnson, 2 El. & El. 435; WheaUey v. Baugh, 25 Pa.
St 528 (a leading case); Dexter v. Riverside & O. Mills. 61 Hun, 619, 15 N.
Y. Supp. 374; Ocean Grove v. Asbui-y Park, 40 N. J. Eq. 447, 3 Atl. 168;
Alexander v. U. S., 25 Ct CI. 87; Roath v. DriscoU, 20 Conn. 533; Williams
V. Ladew, 161 Pa. St 283, 29 Atl. 54; Brain v. Marfell, 28 Wkly. Rep. 130;
Bloodgood V. Ayers, 108 N. Y. 400, 15 N. E. 433; Buff urn v. Harris, 5 R. I.
243; Chatfield v. Wilson, 18 Vt 49; New Albany R. Co. v. Peterson, 14 Ind.
112; Frazier v. Brown, 12 Ohio St. 294; Swett v. Cutts, 50 N. H. 439; Chase
V. Silverstone, 62 Me. 175; Taylor v. Fickas, 64 Ind. 167. But see, as to rea-
soning on other point, Bassett v. Salisbury Manufg Co., 43 N. H. 569.

68 Trowbridge v. Brookline, 144 Mass. 139, 10 N. E. 796. Compare Hougan
V. Milwaukee & St P. Ry. Co., 35 Iowa, 558.

«» Acton V. Blundell, 12 Mees. & W. 324.

70 30 Am. Law Reg. 237-251, comparing, as to this point, Greenleaf v. Fran-
cis, 18 Pick. (Mass.) 117; Wheatley v. Baugh, 25 Pa. St. 528; Haldeman v.
Bnickhardt, 45 Pa. St 514; Trustees v. Youmaus, 50 Barb. 316; Chesley v.
King, 74 Me. 164 (a leading case); Redman v. Forman, 83 Ky. 214; Chatfield
V. Wilson, 28 Vt 49; Phelps v. Nowlen, 72 N. Y. 39; and Chasemore v. Rich-
ards, 7 H. L. Cas. 349-357, 2 Hurt. & N. 168.

TiWrightman, J., in Chasemore v. Richards, supra; Dickinson v. Grand
.7 unction Canal Co., 7 Exch. 282; Broadbent v. Ramsbotham, 11 Exch. 602;
Lybe's Appeal, 106 Pa. St 626; Colrick v. Swinburne, 105 N. Y. 503, 12 N.
E. 427; "The Law of Subterranean Waters," by Henry Budd, Esq., hi 30
Am. Law Rev. 237 (and see references at page 264).

Ch. 11] RIGHTS INVADED. 759

nean, but follows a defined course, it is subject to the law governing
running streams or water courses, and not to the law of mere perco-
lating waters.^* It would seem that artificial water above ground has
been generally regarded on the same basis with underground per-
colating water. A person from whose land such a water course
flows, though he may have no right to have the flow continued, is
entitled to sue, for a nuisance, any owner higher up the stream who
pollutes it so as to deprive him of the beneficial enjoyment of the
water while it continues to flow.''* But an uninterrupted adverse
use of water of an artificial aqueduct has been held to create a
prescriptive right to its enjoyment. ''^ Water rights may, however,
be acquired and altered by agreement, express^* or implied,^" and
by prescription.^'

T2 wmis V. City of Perry (Iowa) 60 N. W. 727, and cases cited; Burroughs
V. Saterlee, 67 Iowa, 306, 25 N. W. 808; Grand Junction Canal Co. v. Sbugar,
6 Ch. App. 483. Et vide Mosler v. Caldwell, 7 Nev. 1002. Article in Current
Comment in Legal Miscellany on "Subterranean Waters," March 1, 1891, May
18, 1890. The reason for the distinction is not clear. Clerk & L. Torts, 295.
As to liability for befouling, see Woodward t. Abom, 35 Me. 271; Stainton v.
Woolly ch, 23 Beav. 225; Pottstown Gas Co. t. Murphy, 39 Pa. St. 257; Co-
lumbus Gas Light Co. y. Freeland, 12 Ohio St. 392; Ottawa Gas Light Co. v.
Graham, 28 111. 73.

" Wood V. Wand, 3 Bxch. 748, 779; Arkwright v. Gell, 5 Mees. & W. 203;
Greatrex v. Hay ward, 8 Exch. 291 ; Sampson v. Hoddinott, 1 C. B. (N. S.) 590;
Trustee v. Dickinson, 9 Cush. (Mass.) 544; Curtlss v. Ayrault, 47 N. Y. 73;
Nuttall V. Bracewell, L. R. 2 Exch. 1; Woodbury v. Short, 17 Vt. 387; Wat-
kins T. Peck, 13 N. H. 360; Clerk & L. Torts, 296; Wood, Nuls. § 401; ante,
p. 753, note 47. Et vide Powell v. Burtler, 5 Ir. Com. Law, 309; Magor v.
Chadwick, 11 Adol. & E. 584.

T* Cole V. Bradbury, 86 Me. 380, 29 Atl. 1097.

76 Horn V. MiUer, 136 Pa. St 640, 20 Atl. 700; Onoto v. Restano, 89 Cal.
63, 26 Pac. 788; Smith v. Chicago, M. & St. P. R. Co. (Wis.) 50 N. W. 497.
Mill and water privUege, Smith v. Thayer (Mass.) 28 N. E. 1131; reservation
of riparian rights, E. G. Blackslee Manuf'g Co. v. E. G. Blackslee's Sons Iron
Works, 129 N. Y. 155, 29 N. E. 2.

76 Where, however, an owner of two adjoining farms, on one of which a
spring furnished water for stock conveyed to the other by pipes, defendant
sold and conveyed the latter farm to plaintiff, such owner may not interfere
with the supply of said spring. I'aine v. Chandler, 134 N. Y. 385, 32 N. E. 18;
Crocker v. Benton, 93 Cal. 365, 28 Pac. 953; Wood, Nuls. 473, note 1, collect-
ing cases; ante, p. 753, note 47.

77 Chauvet v. HiU, 93 Cal. 407, 28 Pac. 1066; Horn v. Miller, 142 Pa. St.
557, 21 Atl. 994; BaU v. Kehl, 95 Cal. 6(m, 30 Pac. 780; Attorney General v.

760 NUISANCE. £Ch. 11

Same — Interference roith Surface Water.

It is often, somewhat loosely, said that a landowner may deal
with casual and intermittent surface waters on his own estate as
he may choose, or that a landowner cannot collect surface water
so as to cause it to flow on the land of an adjoining owner in a
manner different from its natural flow J** It may be safely said that
no right of action accrues for injury arising from the natural flow
or drainage of water from the premises of one upon or through the
premises of another.*^ But beyond this the limitations placed by
law on the right to gather and divert the flow of surface water, or to
exclude it, are not clear.

According to the civil law, the owner of the upper or dominant
estate has a natural easement or servitude in the lower or servient
one to discharge all waters falling or accumulating upon his land
upon the land of the servient owner; and that such natural flow
or passage of water cannot be interrupted or prevented by the
servient owner to the detriment or injury of the estate of the domi-
nant or any other proprietor.*^ This rule of the civil law has never
been accepted by common-law countries. By the common law,
there is no right jure naturae in the flow of surface water. Neither
its detention, diversion, nor repulsion is actionable, though dam-
ages ensue.** This common-law rule is of a very recent origin.**

Revere Ck)pper Co., 152 Mass. 444, 25 N. B. 605; Riverside Water Ck>. v. Gage,
80 Cal. 410, 26 Pac. 889. Compare Last Chance Water Ditch Co. v. HeUbron,
80 Cal. 1, 26 Pac 523; Hlndman v. Rizor, 21 Or. 112, 27 Pac. 13. As to
alteration of servitude, see Allen v. San Jose Land & Water Co., 92 Cal. 138,
28 Pac. 215.

78 Ball, Torts, 43. The term "surface water" Includes such water as is
carried oflT by drainage independently of a water course. Bunderson y. Bur^
lington & M. R. Co. (Neb.) 61 N. W. 721. Cf. Rigney v. Tacoma Light A
Water Co., 9 Wash. 576, 38 Pac. 147.

•0 Livezey v. Schmidt (Ky.) 29 S. W. 25.

81 3 Wait. Act. & Def. 711, S 15, and cases cited; Domat, Civ. Law (Cush.
Ed.) p. 61G, § ir)83; Minor v. Wright, 16 La. Ann. 151. Cases refeiTing to
the civil law will be found collected by counsel for appellant in Barkley v.
Wilcox, 86 N. Y. 140, 141.

82 Bowlsby V. Speer, 31 N. J. I^w, 351; Gannon v. Hargadon, 10 Allen,
109; Chatfield v. Wilson, 28 Vt. 49; Dickinson v. Worcester. 7 Allen, 19;
Greeley v. Maine Cent R. Co., 53 Me. 200; Swett v. Cutts, 50 N. H. 439;

»« Bowlsby V. Speer, 31 N. J. Law, 351.

Ch. 11] RIGHTS INVADED. 761

Rawston v. Taylor "* appears to be the first English, case on the
subject*' In Barkley v. Wilcox (1881),*' a leading case on the sub-
ject,®^ it is said that the question as to the right of the owner of
lower tenement to obstruct the flow of surface water to the injury
of the owner above had not at that time been authoritatively decided
in New Tark« The rule is sometimes called the ^^Massachusetts
rule." ** There would seem, however, to be uncertainty as to what
the common-law rule is. The ordinary rule is that the upper pro-
prietor is not bound to permit water to flow onto the lower estate.**
The courts are by no means agreed •** as to how far the upper ten-
ant may collect and concentrate surface waters, and pour them,
as by means of an artificial ditch, upon the adjacent proprietor in
an unusual quantity. Ordinarily, this right is denied,*^ unless a

Broadbent v. Raznsbotham, 11 Exch. 602; Rawston v. Taylor, Id. 369;
Greatrex v. Hayward, 8 Bxch. 291.

B* 11 Bxch. 369 (1885).

88 21 Lawy. Rep. Ann. 593, containing an exceptionally valuable note by
Henry P. Famham.

«« 86 N. Y. 140.

»T Drake v. Chicago, R. I. & P. Ry. Co., 63 Iowa, 305, 19 N. W. 215; Kan-
sas City & B. R. Co. v. Riley, 33 Kan. 374-377, 6 Pac. 581; Jackman v. Ar-
lington MUls, 137 Mass. 277-284; Boyd y. Conklin, 54 Mich. 583-589, 20 N.
W. 595; Crawford t. Rambo, 44 Ohio St. 279-284, 7 N. B. 429.

«« Boyd V. ConkUn, 54 Mich. 583, 20 N. W. 595.

6» Frazier t. Brown, 12 Ohio St. 294; Livingstcm v. McDonald, 21 Iowa, 100;
Gibbs V. WUliams, 25 Kan. 214.

so Disagreements generally, in the application of the common-law rule as
to surface waters, arise from the natural inconsistency of the maxims, "Sic
utere tno ut alienmn non Iffidas," and ''Cujus est solum ejus est usque ad
coelum." Shane v. Kansas City, St. J. & C. B. Ry. Co., 71 Mo. 237.

•1 Hurdman v. Northeastern Ry., 3 C. P Div. 168; Broder v. Saillard, 2 Ch.
Div. 692; Reynolds v. Clarke, 2 Ld. Raym. 1399; Jenkins v. Wilmington &
W. R. Co., 110 N. C. 438, 15 S. E. 193; Smith v. Faxon, 156 Mass. 589, 31
N. E. 687. Defendant's land, a part of which was swamp, adjoined plain-
tiff*& Defendant dug a ditch, which drained the water from the swamp onto
the land of plaintiff, rendering it unproductive. Held, In an action for dam-
ages, that the fact that the digging of the ditch was good husbandry and im-
proved defendant's land was no defense. Terex v. Eineder, 86 Mich. 24, 48
N. W. 875; Williamson v. Oleson (Iowa) 59 N. W. 267. Discussion by Clark.
J., and Merrlman, J., in Gregory v. Bush, 04 Mich. 37, 31 N. W. 90; Davis v.
SulUvan, 36 Neb. 69, 53 N. W. 1025; Kansas City, Ft. S. & M. R. Co. v. Cook.
57 Ark. 387, 21 S. W. 1006; Illinois Cent. R. Co. v. Miller. 68 Miss. 760. 10

762 NUISANCE. [Ch. 11

prescriptive right has been acquired.*^ It has, however, been
recognized.®' When the improvement of land for ordinary pur-
poses without negligence accumulates surface waters, and causes
them to flow upon the land of another, there is no liability.** On
the other hand, the landowner may appropriate surface water
flowing over his land in no definite chnnnel, although it is thereby
prevented from reacliing a water course which it previously sup-
plied.»»

The old common-law rule, that surface water is a common enemy,
is materially modified by a recognition of the vague principle, "Sic

South. 61; Larkins v. Lamping, 44 lU. App. 649; Drew v. Cole (Cal.) 32 Pac.
229; Lambert v. Alcorn, 144 111. 313, 33 N. E. 53, 55; Schnitzius v. Bailey, 4g
N. J. Eq. 409, 22 Atl. 732. But culverts or ditches must he connected as the
cause of the wrong. Felt v. Vicksburg, S. & P. R. Co., 46 La. Ann. 549, 15
South. 177; Kelley v. Dunning, 39 N. J. Eq. 482; Rhoads v. Davidhelser, 133
Pa. St 226, 19 Atl. 400. Cf. Meixell v. Morgan, 149 Pa. St. 415, 24 Atl 216;
I^Attimore v. Davis, 14 La. 161; Hughes v. Anderson, 68 Ala. 280; Beach v.
Gay lord, 43 Minn. 476, 45 N. W. 1095; Conner v. WoodflU, 126 Ind. 85, 25
N. E. 876; Rathke v. Gardner, 134 Mass. 14.

92 Chapel V. Smith, 80 Mich. 100, 45 N. W. 69; Oaten v. Jerome, 93 Mich.
196, 53 N. W. 7; Eshleman v. Martic Tp., 152 Pa. St. 68, 25 Atl. 178; Bunder-
son V. Railroad Co., 43 Neb. 545, 61 N. W. 721.

0 3 Lambert v. Alcorn, 144 111. 313, 33 N. E. 53. (This case is perhaps the
most radical in support of right to rid one*s lands of surface water which haa
yet been decided.) Note to Lambert v. Alcorn (111.) 21 Lawy. Rep. Ann. 611.
Cf. with Gray v. McW^ilUams (Cal.) 21 Lawy. Rep. Ann. 593, 32 Pac. 976;
Paddock v. Somes, 102 Mo. 226, 14 S. W. 746; Wharton v. Stevens (Iowa) 50
N. W. 562; Johnson v. Railway Co., 80 Wis. 641, 50 N. W. 771; Jones v.
Wabash Ry., 18 Mo. App. 251.

0* Brown v. Winona & S. W. Ry. CJo., 53 Minn. 259. 55 N. W. 123. Thus,
an erection of a building on one*s premises, diverting surface water and caus-
ing it to flow OD the land of an adjoiniug owner, is not an actionable wrong.
Bowlsby V. Speer, 31 N. J. I-iaw, 351. May change course, Johnson v. Chicago,
St P., M. & O. Ry. Co., 80 Wis. 641, 50 N. W. 771. Increase flow by under-
ground drains, Meixell v. Morgan, 149 Pa. St. 415. 24 Atl 216.

OB In Broadbcnt v. Ranisbotham, 11 Exoh. 602, it was held that where the
plaintiff's mill, for more than 50 years, has been worked by the stream of a
brook which was supplied by the water of a pond filled by rain, a shallow
well supplied by subterraneous water, a swamp, and a well formed by a
stream springing out of the side of a hill, the waters of all which occasionally
ovei*fiowed and ran down the defendant's land in no definite channel into the
brook, the plaintiff had no right, as against the defendant, to the natural flow

Ch. 11] RIGHTS INVADKD. 763

utere tno, ut alienum non tedas." •• The law allows the "reason-
able use'' •' of one's own land, ajid all this involves. More specif-
ically, in this, as in other questions of nuisance, courts are governed
by considerations of expediency. The comparative injury pro-
duced or relieved in many cases will determine.®' Thus one drain-
ing his land may deposit the surface water in a natural drain,
though it is thereby conveyed on a neighbor's land, if it does not
unreasonably injure the latter; and such drainage which reclaims
twenty acres of agricultural land, and causes only an acre or two
of his neighbor's land to be submerged for a time in the spring of
the year, is not unreasonable.** The law as to surface waters ap-
plies alike to private individuals, private corporations, like rail-
road companies,***® and municipal corporations.*®* Ordinarily, cor-
porate character confers no immunity not extended to a private indi-
vidual.

of any of the waters. Gibbs v. Williams, 25 Kan. 214; Bangor v. Lansil, 51
Me. 521; Parks v. Newburyport, 10 Gray, 28; Waffle v. New York Cent Ry.,
58 Barb. 413; Goodale v. Tuttle, 29 N. Y. 459.

•« Ante, c. 1. And see article on "Bight of Action Arising Against a Neigh-
bor from Nuisance Committed on One's Land," 58 J. P. 745.

•7 Ante, c. 1; John M. Gest, in 1 Am. Law Reg. & Rev. 1; Ray, Ne«. 301. One
who negligently allows filth and surface water to accumulate on his land,
and percolate through the soil onto adjacent land, is liable for the injuries
tharefrom. Anheuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897, 60 N.
W. 37a And see Pfeiffer v. Brown, 165 Pa. St. 267, 30 Atl. 844.

•> Hughes V. Anderson, 68 Ala. 280.

»• Canty, J., in Sheehan v. Flynn (Minn.) 61 N. W. 462.

100 Booth V. Railroad Co., 140 N. Y. 267, 35 N. E. 592; WhaUey v. Lan-
cashire Ry., 13 Q. B. Div. 131; Staton v. Norfolk & C. R Co., 109 N. C. 337,
13 S. E. 933; Wead v. St. Johnsbury & L. C. H. Co., 64 Vt. 52, 24 Atl. 3G1;
Gulf C. & S. P. Ry. Co. v. Donahoo, 59 Tex. 128; Galveston, H. & S. A. Ry.
Co. V. Tait, 63 Tex. 223; GUbert v. Savannah. G. & N. A. Ry. Co., 09 Ga.
396; Indianapolis, B. & W. Ry. Co. v. Smith, 52 Ind. 428; Hogenson v. St.
Paul, M. & M. Ry. Co., 31 Minn. 224, 17 N. W. 374; Curtis v. Eastern Ry.,
98 Mass. 428.

101 Municipal corporations, in raising grade of street and interfering with
natural drainage, have been held liable for failure to provide a sufilcient es-
cape of the water dammed up. Ross v. Clinton, 46 Iowa, 606. Cf. Town of
Martinsville v. Shirley, 84 Ind. 546. But a city is not bound to provide against
extraordinary stwrms. Allen v. City of Chippewa Falls. 52 Wis. 430, 9 N. W,
28^ Ordinarily, it is not responsible for effect on surface water by changing

764 NUISANCE* [Ch. 11

Same — Nuisance on Highways,

There is no particular form or ceremony necessary to the dedica-
tion of land to public use. All that is required is the consent of
the owner of the land, and the fact of its being used for public pur-
poses intended by the appropriation.*®* This principle is applied
to a public highway.*®* Highways may also be acquired by pre-
scription.*®* Almost universally statutory methods are provided
for the acquisition of highways.*®'

Interference with the right of free and safe passage over a public
highway has been regarded from the point of view of trespass,*®®
and of negligence.*®^ The obstruction or use of a street, so as to
unreasonably impede travel, and render its use inconvenient or dan-

gTAde of street, Wakefield v. Newell, 12 R. I. 75; Alden v. City of Minneapolis,
24 Minn. 254; Lynch v. Mayor, 76 N. Y. 60; Murphey v. Mayor, etc., of Wil-
mington, 5 Del. 530; Stewart v. City of Clinton, 79 Mo. 603; but, no more
than an individual, cannot precipitate surface water on adjoining proi>erty,
in unnatural quantity, by ditches or drains, Smith v. City Council of Alexan-
dria, 33 Grat 208; O'Brien v. City of St. Paul, 25 Minn. 333; GiUison v.
City of Charleston, 16 W. Va. 282; Inhabitants of West Orange v. Fidd, 37
N. J. Eq. 600; Noonan v. City of Albany, 79 N. Y. 470; City of North Vernon
V. Voegler, 89 Ind. 77. And, generally, see Inhabitants of Township of Ham-
Uton V. Wainwright (N. J. Ch.) 29 Atl. 200; Rhodes v. City of Cleveland, 10
Ohio, 139; Pemioyer v. City of Saginaw. 8 Mich. 534; New York Cent & H.
R. R. Co. V. City of Rochester, 127 N. Y. 591, 28 N. B. 416; Aurora v. Love,
93 IlL 521; Am v. City of Kansas, 14 Fed. 236; Kobs v. City of Minneapolis,
22 Minn. 150; Young v. Commissioners, 134 HI. 569, 25 N. E. 689. Commis-
sioners of highway are personally liable. Tearney v. Smith, 86 111. 391.

102 President, etc., of City of Cincinnati v. White, 6 Pet. 431. And see
Morgan v. Railroad Co., 96 U. S. 716; Joy v. St Louis, 138 U. S. 1, 11 Sup.
Ct. 243; Godfrey v. City of Alton, 12 111. 29; Columbus v. Dahn, 36 Ind. 330;
Holdane v. Trustees of Cold Spring, 21 N. Y. 474.

108 state V. Trask, 6 Vt. 355; Noyes v. Ward, 19 Conn. 230; 3 Kent, Comm.
432.

104 Com. V. Cole, 26 Pa. St 187. A way of necessity is an accessorial servi-
tude, founded on the principle that a man shaU not derogate from his own
grant "If A. has an acre of ground surrounded by the ground of B., A., for
necessity, has a way over a convenient part of B.'s ground to his own soil,
as a necessary incident to his ground.** Staple v. Heydon, 6 Mod. 1-4.

100 Wood, Nuls. S 233.

106 Ante, p. 745.

107 Excavations making a sidewalk or highway unsafe attach liablUty for
negligence. Smith v. Ryan (City Ct. Brook.) 8 N. Y. Supp, 853; Galvin v.

Ch. 11] RIGHTS INVADED. 76&

gerons to travelers, may become a public nuisance.^®* The appropri-
ation of a street by an indi\idual, to be an actionable nuisance, need
not be exclusive. It is sufficient if it renders the free passage less com-
modious.*®* Thus, in Barber v. Penley,"® a person who, by carrying
on a theater, caused a crowd to assemble and obstruct the highway,
thereby creating a nuisance to private adjoining owners, is an
swerable for the obstruction, if it be the necessary result of his
acts, even though it be not his actual object. There is no differ-
ence of principle in this respect between entertainments carried on
out of doors or inside of a building. On the other hand, however,
sliding in a street, accompanied by boisterous conduct, even if it
be contrary to city ordinance, and cause a person's horse to run
away, is not a nuisance.*** A nuisance may be actionable if it
detract from the safety of travelers,**^ whether from something
suspended in the air,*** on the surface,*** or from an excavation.**^
The safety of the traveler has reference to the ordinary means of
locomotion. Therefore, things calculated to frighten horses may

Mayor, 112 N. Y. 223. 19 N. E. 675; Brezee v. Powers, 80 Mich. 172, 45 N. W,
130; KeUy v. Bennett, 132 Pa. St. 218, 19 Aa 69; ante, p. 176, "Municipal
Corporations"; post, p. 771, note 154.

108 Holmes v. Corthell, 80 Me. 31, 12 AtL 730.

io» Hart V. Mayor, 24 Am. Dec. 165; Norrlstown v. Moyer, 67 Pa. St 355;
State V. Mayor, 30 Am. Dec. 564.

110 [1893] 3 Ch. 489.

111 Jackson v. Castle, 80 Me. 119, 13 Atl. 49; Id., 82 Me. 579, 20 Ati. 237.

112 Dygert v. Schenck, 35 Am. Dec. 575.

118 As an awning, McConnell y. Bostelmann, 72 Hun, 238, 25 N. Y. Supp.
390; a roof. Garland v. Towne, 55 N. H. 55 (cf. Mellen v. Morrill, 126 Mass.
545); a cornice. Grove v. Ft. Wayne, 45 Ind. 429; a bow- window, Jenks v.
WiUlams, 115 Mass. 217.

11* A ceUar door, Daniels t. Potter, 4 Car. & P. 262; Proctor v. Harris, Id.
337; a gate, James v. Hayward, Cro. Car. 184; a fence, Neflf v. Paddock, 26
Wis. 546; a building, Houston & G. N. R. Co. v. Parker, 50 Tex. 330; Stet-
son y. Faxon, 19 Pick. 147. An unguai'ded opening, four feet and nine Inches
in width, in a pavement, and extending from the building line into the street
five feet and six inches, if located in a frequented street, is a public nuisance,
and neither lapse of time, nor the existence of like nuisances elsewhere with
the consent of the municipality, wiU legalize it King y. Thompson, 87 Pa.
St 365, distinguishing McNerney y. Reading City, 150 Pa. St 611. 25 Aa 57.

iiB Cellar opening unguarded, Coupland v. Hardingham, 3 Camp. 389; coal

766 NUISANCE. [Ch. 11

be actionable nuisancos.*^* It would seem that no liability exists
for injuries caused by a nuisance outside the limits of a highway.*"
But, to enable a private person to sustain the action, he must show
special injury. The public may institute proceedings for the abate-
ment or prevention of such a nuisance, irrespective of the question
of pecuniary damage, by the speediest and most effectual remedy.**'

Interference toith Healthy Coriifart, and Convenience.

It is not essential, however, to constitute a nuisance, that the in-
jury should be to property.*** The early conception of nuisance as
appears in Blackstone's definition and by the early forms of remedy
provided by law, was an injury to lands, tenements, and heredita-
ments. And, in some cases, only property owners can at the pres-
ent time sue for nuisance.**'* The scope of nuisance has, however,

hole, Clifford v. Dam, 41 N. Y. Super. Ot 391; Hadley v. Taylor, L. R. 1 O. P.
53; Hobblt v. Ix)ndon & N. W. Ry. Co., 4 Exch. 254. Et vide Barnes v. Wai-d,
9 C. B. 392; post, p. 919, "Negligence"; post, 799, "Personal Interference."

ii« A hallow, burnt, and blackened log within the limits of the highway,
Foshay v. Town of Glen Havien, 25 Wis. 288; a derrick, Jones v. Housatonic
R. Ck)., 107 Mass. 261; a tent, Ayer v. City of Norwich, 12 Am. Rep. 396;
dramming near highway, Loubz v. Hafner, 1 Dev. (N. O.) 185; water wheel,
House V. Metcalf, 27 Conn. 631; sled with tub, Judd v. Fargo, 107 Mass. 264;
traction engine, McComber v. Nichols, 22 Am. Rep. 522; post, p. 919, "Negli-
gence."

iiT Wood, Nuis. §§ 322-^i28; Irvine v. Wood, 51 N. Y. 224. Cf. Drake v.
T^well, 13 Mete. (Mass.) 292, with Congreve v. Smith, 18 N. Y. 79, Hixon v.
T^well, 13 Gray, 59, Congreve v. Morgan, 18 N. Y. 84. and Hewlson v. New
Haven, 34 Conn. 136. And see Morse v. Town of Richmond, 41 Vt. 435.
Cases of this kind, however, often turn, not so much upon the nature of a
nuisance, as the responsibility of an owner to abutting property, or of a city
for damage. Post, p. 019, "Negligence"; post, p. 799, "Personal Interference."

118 Smith V. McDowell, 148 111. 51, 35 N E. 141.

110 This distinction has already been referred to in St. Helens Smelting
Co. V. Tipping, ante, p. 748, note 20. Mr. Bigelow says it is impossible to
say just what this distinction is to be. The meaning api)ears to be that the
degree of harm in an action for i>ersonal discomfort must be greater than in
an action for injury to property. Bigelow, Lead. Cas. 467; in same language.
Ball, Lead. Cas. Torts, 409.

120 This right to complain of pollution of a stream may be confined to ri-
parian owners (Conrad v. Arrowhead Hot Springs Hotel Co.. 103 Cal. 399,
37 Pac. 386; Chance v. Warsaw Water Works [Sup.] 29 N. Y. Supp. 729);
and damage by nuisance to an alley can be recovered only by owner or oc-

Ch. 11] RIGHTS INVADED. 767

been widened so far as to clearly include such use of property or
conduct of person as renders the enjoyment of life uncomfortable,
or is indecent and offensive to the senses. Thus, noise ^^^ may be
so continuous and excessive, or vapors or noxious smells *'* render
the enjoyment of life and property so uncomfortable, as to be a nui-
sance. A fortiori, the maintenance of anything injurious to health ^*'
may be a nuisance. It usually occurs that such interference with
personal comfort or such personal offense is coincident with dam-
age to property.*** But the word "nuisance" is said to be applied
by the English law indiscriminately to infringement of property and
personal rights.*** It seems, however, that mental discomfort and
injury which are not of temporal, but of spiritual, character, are
not nuisances; as that resulting from running street cars on Sun-
day."'

cupier of land to which the alley is appurtenant (Commissioners of Kensing-
ton V. Wood, 49 Am. Dec. 682).

131 BriU V. Flagiler, 23 Wend. (N. Y.) 354; Elliotson v. Feetham, 2 Blng.
N. C. 134; Street v. Tugwell, 2 Selw. N. 1\ 1138; Carrington v. Taylor, 11
Bast, 571; Keeble y. Hlckeringill, Id. 574; Rex y. Smith, 2 Strange, 704;
Fish y. Dodge, 4 Denio (N. Y.) 311; Dennis y. Eckhardt, 3 Grant, Gas. (Pa.)
390; King y. Lloyd, 4 Esp. 200; Campbell y. Seaman, 63 N. Y. 568; Pickard
y. Gomns, 23 Barb. 444; Catlin y. Valentine, 9 Paige, 575; Walter y. Selfe, 4
De Gez & S. 315-^23.

i«* Bohan v. Port Jeryls Gas-Light Co., 122 N. Y. 18, 25 N. B. 246.

issA hospital in reslden-tial locality, Gilford y. Babies* Hospital (Sup.) 1
N. Y. Supp. 448. A cemetery, Jung y. Neraz, 71 Tex. 396, 9 S. W. 344 (cases
coUected at page 397, 71 Tex., and page 344, 9 S. W.).

124 This kind of nuisance is most commonly spoken of by the technical name.
Webb, PoL Torts, 494.

isB Moak, Underh. Torts, p. 229, side p. 125, citing Add. 155. In this treatise
nuisance is discussed under chapter 5, "Of BodUy Injury Caused by Nuisance,"
and chapter 9, "Of Priyate* Nuisance Affecting Realty." Cases on conyen-
lence and enjoyment will be found collected, also, in Webb, Pol. Torts, p. 494.
In Johnson y. Porter, 42 Conn. 234, It was held that offensiye odors preyenting
ccoifortable use of a house do not entitle to recoyer for diminished yalue of
house. Commlnge y. Steyenson, 76 Tex. 642, 13 S. W. 556.

i2« Sparhawk y. Union Passenger R. Co., 54 Pa. St. 401 (opinion of Strong,
J., at nisi prlus, page 404); First Baptist Church y. Schenectady & T. R. 0>.,
5 Barb. 79; State y. Llnkhaw, 69 N. C. 214; Com. y. W(df, 3 Serg. & R. 49.
Contra, see authorities coUected in Sparhawk y. Union Passenger R. Co., 54
Pa, St. 419.

768 NUISANCE. £Ch. 11

THE ANNOYANCE OR INTERFERENCE.

284. The annoyance or interference constituting a nuisance
may arise from either or both —

(a) The use, management, custody, or control of prop-

erty; or

(b) Personal conduct.

Use of Property.

Nuisance is ordinarily spoken of as a wrong arising where a per-
son uses his own property so ds to injure another's.^*' Many nui-
sances arise from the use of lands, as between adjoining owners with
respect to water rights, structures on the land, and generally with
respect to the use of the land,^^' So, where premises become dan-
gerous, or are made^ dangerous, for example, by spring guns and
traps, a nuisance may arise,^** or where offensiye agencies, like
privies and cesspools, are allowed to exist to the annoyance of a
neighborhood, or the pollution of waters; ^'® or where a useful ele-
ment is improperly turned aside.^*^

A nuisance may arise from the ownership or control of personal
property, as of dangerous animals; **' also from the custody or use

laT Norcross v. Thorns, 51 Me. 503.

i«» Ante, p. 233, "Injury to Property."

i2» Murray v. McShane, 52 Md. 217; Harvey v. De Woody, 18 Ark. 352;
Wood, Nuis. § 132. And see, as to sirring guns as pnblic nuisance. State y.
Moore, 83 Am. Dec. 159.

180 Jones V. Powell, Hnt 135; Norton v. Scholefleld, 9 Mees. & W. 665;
Haugh's Appeal, 102 Pa. St 42; Wahle v- Reinbach, 76 III. 322. Of. Ball v.
Nye, 99 Mass. 582, with Middlesex Co. v. McCue, 149 Mass. 103, 21 N. B.
230, and Allen v. Boston, 159 Mass. 324, 34 N. E. 519. State v. Moore, 31
Conn. 479; Ilott v. Wilkes. 3 Barn. & Aid. 304; Dean v. Clayton, 7 Taunt 489;
Bird y. Holbrook, 4 Bing. 628; Jay v. Whltefield, cited in 3 Bam. & Aid.
308; Jordin v. Crump. 8 Mees. & W. 782-787.

131 Parke v. Kilham. 68 Am. Dec. 310.

18 2 Cox V. Burbldge, 9 Jur. (N. S.) 070. "Recent Developments in English
Jurisprudence," 4 Am. Law Reg. (N. S.) 1, 129, by Judge Bedfield. A dis-
eased animal. Mills v. New York & H. R. Co., 2 Rob. (N. Y.) 326; a savage
dog, Nehr v. State, 35 Neb. 638. 53 N. W. 589; a horse unlawfully at large
(Baldwin V. Ensign, 44 Am. Rep. 205), whether vicious or not

Ch. 11] THE ANNOYANCE OR INTERFERENCE. 769

of explosiyes,*** or of fire^'* or water.^'" In the conduct of busi-
ness, and especially where vapors^'* or smoke ^'^ or stenches *** or
dust "• or noises ^*^ or jarring, or other similar annoyances arise,
actions for nuisance are constantly sustained.^ *^ The old familiar
principles of nuisance are changed, adapted, and extended to meet
the emergencies of modern civilization. This is conspicuously true
with respect to the commercial uses of electricity.^** It seems to be

i»» Post, p. 810. "Care." Shooting a gas well is prima facie a nuisance.
Tyner y. People's Gas Co., 131 Ind. 408, 31 N. E. 6L Blasting, Morgan v.
Bowes, C2 Hun, 623. 17 N. Y. Supp. 22; may be restrained, Rogers v. Han-
field, 14 Daly, 339. Powder magazine a nuisance, Comminge v. Stevenson,
76 Tex. G42, 13 S. W. 55(5.

184 Add. Torts, 370-373; Vary v. Thomson, 13 Fac. Col. 491; League v. Jour-
neay, 25 Tex. 172; Burrouglis v. Housatonic Ry., 15 Conn. 124; Galpin v.
Railroad Co., 19 Wis. 637; Vaughan v. Menlove, 32 E. C. L. 740; TubervU v.
Stamp, 1 Salk, 13; Cuff v. Railroad Co., 35 N. J. Law, 17; Wood, Nuis. SS 147-
149.

185 Ry lands V. Fletcher, L. R. 3 H. L. 330.

i3« Ric. de D. v. Richards, 4 Ass. p. 3, fol. 3; Rex y. Wilcox, 2 Salk, 458;
Holsman v. Boiling Spring) Bleaching Co., 14 N. J. Eq. 335; People y. Detroit
White I^ad Works, 82 Mich. 471, 46 N. W. 735; Campbell y. Seaman, 63 N. Y.
568; Hackenstine's Appeal, 70 Pa. St. 102; Crossley v. Light uwler, L. R. 3 Eq.
279; Fogarty y. Junction City Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052;
Harlcy v. Merrm Brick Co.. 83 Iowa, 73, 48 N. W. 1000.

i»T Walter v. Selfe, 4 Eng. Law & Eq. 15; Catlin y. Valentine, 9 Paige (N. Y.)
575; Smith v. McConathy, 11 Mo. 331. See Rhodes v. Dunbar, 57 Pa. St. 274^
Cartwright v. Gray, 12 Grant, Ch. (U. C.) 399, 400.

188 As from a pig sty; Aldred's Case, 9 Coke, 58a. Tanneiy: Francis v,
Schoellkopf, 53 N. Y. 152; Pennoyer v. AUen, 56 Wis. 502, 14 N. W. 609; Bliss
V. HaU, 4 Bing. N. C. 183. Slaughterhouse: Cf. Ballentine v. Webb, 84 Mich,
;», 47 N. W. 485, with Bishop y. Banks, 33 Conn. 118-121, and Pruner y. Pen-
dleton, 76 Va. 516. Fertilizing factories: Tuttle y. Church, 53 Fed. 422. Cf.
Susquehanna Fertilizer Co. y. Malone, 73 Md. 2G8, 20 Atl. 900, with Fertilizing
Co. y. Hyde Park, 97 U. S. 059; Meigs y. Lister, 23 N. J. Eq. 199; Appeal of
Czamlecki (Pa. Sup.) 11 Atl. 660.

i»» Hutchins y. Smith, 63 Barb. 251; Cooper y. Randall, 53 111. 24; Cooper
V. North British R. Co., 36 Jur. 169, 2 Macph. 117.

• 140 Shepard y. Hill, 151 Mass. 540, 24 N. E. 1025; Dennis y. Eckhardt, 3
Grant, Cas. (Pa.) 390; Bishop y. Banks, 33 Conn. 11&-121; State y. Haines, 30
Me. 65.

i«i Demarest y. Keefe, 34 N. J. Eq. 469.

i*« As in Chandler Electric Co. y. Fuller, 21 Can. Sup. Ct. 337. Telegraph

1.AW OF TORTS— 49

770 NUftANCE. [Ch. 11

settled, both in England and America, that electrical interference
is a statutory nuisance, for which there is no remedy at common
law.*"

Personal Conduct,

A nuisance may be conmiitted by personal conduct without in-
volving property. Thus, indecent exposure in a public place, in the
presence of several persons.*** So, singing a ribald song,**^ swear-
ing, using indecent language in a public place, or uttering loud
cries in a public street, may constitute a nuisance.**' Eavesdrop-
ping was, at an early date, regarded as a nuisance,**' but this
'n}arbarism" (?) has vanished.*** Personal conduct often combines
with use of proi)erty to constitute nuisance; as where public drink-
ing saloons **" or inns **® are the scenes of noisy carousals by night
and by day. So the indecent and boisterous behavior of inmates
and visitors of a house of ill fame, although constituting a public
nuisance, may also be the basis of recovery of damages and the
issuance of an injunction on behalf of private individuals whose
property is thereby injured.*** And so, generally, any business or

poles in street, a nuisance: Barber v. Railway Co., 83 Mich. 2d9, 47 N. W. 219;
Reg. V. United Kingdom Electric Tel. Co., 31 Law J. M. C. 16G, 10 Wkly. R^.
538. As to liabUity of municipal corporation for allowing telephone poles to
be erected in Its streets, see Tbomp. Eleotr. S 29. As to power to remove elec-
trical poles, see, Id. S 31.

1*5 Hudson River Tel. Co. v. Watervliet Turnpike & R. Co. (N. Y. App.) 32 N.
E. 148. And see "Electric Railroads on Public Highways,'* 2 Am. Law Reg.
& Rev. 38.

14* Boom V. Utica, 2 Barb. 104. Cf. State v. Rose. 32 Mo. 500; Reg. v. HSl-
liott, Leigh & C. 1(X^; State v. Millard, 18 Vt. 574; Rex v. Gallard. 1 W. Kel.
163.

1*5 State V. Toole. 10(5 N. C. 73G, 11 S. E. 168.

i*« Wood, Nuls. 75; Com. v. Harris, 101 Mass. 29; Com. v. Oaks, 113 Mass.
S; Com. V. Spratt, 14 Phila. 365; State v. Graham, 3 Sneed (Tenn.) 71; State
V. Powell, 70 N. C. 67.

1*7 AVood, Nuis. S 5.').

i*« Wood, Nnis. % 56. Cf. 1 Blsh. Cr. Law, 1124.

i*» State V. Bertheol, 6 Black f. 474; State v. Buckley, 5 Har. (DeL) 50a AsC
to skating rink erected witliin a few yards of a dwelling house, Snyder v. Ca-
bell, 29 W. Va. 48, 1 S. E. 241.

150 Hawk. P. C. c. 78, S 182; 3 Bac. Abr. Tit. *'Inn8."

151 Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514.

Ch. 11] THK ANNOYANCE OR INTEKFEKENOIC. 771

act calling together disorderly crowds in public places is an action-
able nuisance.^**

236. The interference with legal rights, which constitates

a nuisance, does not depend, ordinarily, upon
either —

(1) The care exercised by the wrongdoer; or

(2) His motive.

Cfire Ivimateiial,

Want of care is not an element of nuisance. '^Whoever does an
unlawful act '^ in placing in jeopardy the lives or property of others
does so at his peril, and if injury results to others as a consequence
of such unlawful act, he must respond in damages. The rule is well
nigh, if not entirely, universal, that men must so use their own
property, and so exercise their own privileges, that they do not
thereby destroy or imperil the rights of others; and this is so, even
in the exercise of rights not prohibited by law, and in the exercise
of trades and business not nuis»ances per se." It is therefore held
that a person who placed a powder magazine in dangerous prox-
imity to another's dwelling is liable for damages resulting from
its explosion without his direct negligence.^ •* In general, no exer-
cise of care is a defense to the maintenance of a nuisance.*** In
legalized nuisance, however, the question of negligence may be ma-

152 Wood, Nuls. 8 48,

i5« Chicago, W. & V. Coal (V). r. OIiipr, 34 HI. App. 364. Bt vide Laflin &
R. Powder C6. v. Tearnej, 131 111. 322, 23 N. E. 389; Heeg v. Llcht, 80 N.
Y. 579; rhoathnin v. Shearou, 1 Swan, 2i:?.

134 Frost V. Berkeley Phosphate Co. (S. C.) 20 S. E. 280, and cases cited;
Tarry v. Ashton, 1 Q. B. Dlv. 314. As to pollution of a well by habitual dis-
cliarjfe »of filth, to defendant's knowledge. Ball t. Nye, 07 Am. Dec. 5(>;
Kinnaird v. Standard Oil Co., 89 Ky. 468, 12 S. W. 937; Haugh's Appeal, 48
Am. Rep. 193; Hauek v. IMpo-Liiie Co.. ir^i Pa. St. 36C. 26 Atl. <V44; Moses
V. State, 58 Ind. 185. C(»mi)are Ball v. Nye, 99 Mass. 582; Ilodf^kinson v.
Ennor, 4 Best & S. 229. And, Kcnerally, see Fletcher v. Rylands, L. R. 1
Exch. 265: Cahill v. Eastman, 18 Minn, 324 (Cil. 292); McAndrews v. Collerd.
42 N. J. Law, 189; iiost. p. 788. "Legalized Nuisance." In Dygert v. Schenck.
23 Wend. 446, 447, Cowcn, J., held that: "Any act of an individual done to
a highway. If it be detracted from the safety of tnxvelers, is a nuisance.
♦ • ♦ Special damages arising from it, therefore, furnish ground for prl-

772 NUISANCE. [Ch. 11

terial with respect to liability.^ "** But if the powers conferred by
the legislature are conceded, the liability is independent of negli-
gence, and rests upon the theory of nuisance.*"

Motive ImviateriaL

It is ordinarily said that the intent or motive is immaterial to
the determination of the question of whether a given case consti-
tutes or does not constitute a nuisance.^ "^ This, however, is not
safe as a universal proposition. Where a high fence serving no use-
ful or needful purpose is built and maintained out of pure spite and
malice, a nuisance is created. "A wanton infliction of damage can
never be right. It is a wrong, and a violation of right, and is not
without remedy. What right has the defendant, in the light of just
and beneficent principles of equity, to shut out God's free air and

vate action, without regard to the question of nefflijjence" in defendant.
Congreve t. Smith, 18 N. Y. 79. Et vide Babbage v. Powers. 130 N. Y. 281,
29 N. B. 132; Adams v. Fletcher. 17 R. I. 137. 20 Atl. 2(53. Obstruction of a
highway by the operation and management of a train is a nuisance, irre-
spective of negligence. Lamming v. Galusha, 135 N. Y. 239. 31 N. B. 1024.

165 Weld V. Gas-Light Co., 1 Starkie, 189. Thu«, where one uses his land
in the manufacture of fertilizers, and so, necessarily, in the manufacture
of sulphuric acid, in the process of which noxious gases escape, by reason
of which injury to his neighbors will either necessarily or probably ensue,
he is liable, if such injury does result, even though he may have been rea-
sonably careful. Frost v. Berkeley Phosphate Co. (S. C) 20 S. E. 280.

io« Hay V. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163;
i'hinizy Y. City Council of Augusta, 47 Ga. 263. In an action against a mu-
nicipal corporation, however, liability under such circumstances seems to
depend on negligence. Lincoln v. City of Detroit, 101 Mich. 245, 59 N. W,
617; 2 Thomp. Neg. 7G1; ante, p. 175, "Municipal Corpora/tions." And see
Boston Belting Co. v. City of Boston, 149 Mass. 44, 20 N. B. 320.

167 Aldred's Case, 9 Coke, 57a. The owner of land may erect cheap, mov-
able tenement houses to the line of an adjacent owner, and fill them with col-
ored tenants, to punish such owner for refusal to selL Falloon v. SchiUing, 44
Am. Rep. 642. South Royalton Bank v. Suffolk Bank, 27 Vt. 503, In which
it was held that motive was immaterial in obstruction of water. So in Brady
V. Detroit Steel & Spring Co. (Mich.) 60 N. W. 687, damage from escape of
pernicious gas may be recovered, irrespective of intention. Bonnell v. Smith,
53 Iowa. 282, 5 N. W. 128; Ashby v. White, 1 Smith, Lead. Cas. 472, and
note; Wood, Nuis. § 6 (but compare sections 141, 818); 16 Am. & Eng. Enc,
Law, 930, collecting cases in note 2. But see inconsistency with subd. 2,
"Noise," p. 944.

Ch. 11] THE ANNOYANCE OB INTEKFERENCE. 773

sunlight, not for any benefit or advantage to himself, or profit to his
land, but simply to gratify his own wicked malice against his neigh-
bor." ^'^ In such cases malice is made an essential element of nui-
sance by statute in Massachusetta*** If the person was actuated in
the construction of such fence by two motives, one of utility (the
fence being used as a bill board) and the other of malice and annoy-
ance, the one injured cannot recover if the former motive con-
trolled.^*^® So, it is said that a noise may be a nuisance if mis-
chievously or maliciously made, while a similar noise might not be,
if made in carrying on a lawful calllng.^**^ There is, moreover, a
distinct class of nuisances arising from interference by force or
iraud by the free exercise of another's trade or occupation.***
Actual or constructive knowledge is said to be essential to charge
a town with damages from defects in a highway, or from any other

158 Morse, J., in Burke v. Smith, 69 Mich. 380, 37 N. W. 838, affirmed in
Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381. affirmed, also, in Kirkwood
V. Finegan, 95 Mich. 543, 55 N. W. 457; Kessler v. Letts, 7 Ohio Cir. Ct. 108.
The ordinary rule, however, would seem to be that if a man wantonly and
maliciously erect on his premises a high fence or window, for the sole pur-
pose of annoying plaintiff, by obstructing the light and air from eiiteriuK
plaintiff's house, and rendering it unhabitable, no action would lie on behalf
of plaintiff. Mahan v. Brown, 13 Wend. 2G1; Jenkins v. Fowler, 24 Va.
St. 308-310; Gerard v. Lewis, L. R. 2 C. P. 305; Jenks v. Williams, llo Mass.
217; Brothers v. Morris. 49 Vt. 460; McMillin v. Staples, 30 Iowa, 532; (Jlen-
don Iron Co. v. IJhler, 75 Pa. St. 467; Auburn & C. P. R. Co. v. Douglass, 9
N. Y. 444; Stevenson v. Xewnham, 13 C. B. 285-297; Lucas v. Nockells. 4
Bing. 729, 10 Bing. 157. This is in accord with the earlier conception of the
law of tort (ante, c. 1, p. 2) that "as long as a man keeps within the law,
by doing no act which violates it, we must leave his motive to Him who
searches hearts.'* Jenkins v. Fowler, 24 Pa. St. 308; Adler v. Fenton, 24 How.
407-412; Hulchins v. Hutchlns, 7 Hill, 104; Phelps v. Nowlen, 72 N. Y. 39,
46 N. Y. 511; Benjamin v. Wheeler, 8 Gray, 410; Estey v. Smith, 45 Mich.
402, 8 N. W. 83. One who builds a fence on a traveled highway is guilty
of maintaining a public nuisance, though he honestly believes the fence to
be on his own land. Com. v. Dicken, 145 Pa. St. 453, 22 AU. 1043. See Chris-
tie v. Davey [1893] 1 Cb. Div. 31(5.

189 Smith V. Morse. 148 Mass. 407, 19 N. E. 303; Uice v. Moorehouse, 150
Mass. 482, 23 N. E. 229.

leo Hunt v. Coggin (N. H.) 20 Atl. 250.

!•! 16 Am. & Eng. Enc. Law, 944 (cases collected in note 7).

i«2 Wood, Nuis. § 141; Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio
St 41. 26 N. E. 630.

774 NUISANCE. [Ch. 11

nuisance which it is under obligation to remove,^*' or to charge an
owner of domestic animals with liability for them as nuisances.***

236. The plaintiff in a judicial proceeding against a nui-
sance is not ordinarily disentitled by having come
to the nuisance, unless the right of the defendant
amounts to an easement.

The early cases ^•'^ on nuisance held that one who came to a pri-
vate nuisance by that act disentitled himself to complain of it This
amounted to saying that if the nuisance had been in existence for
ever so short a time before the plaintiff came to it, that was enough
to justify its continuance. However, this doctrine is exploded.***
No doubt, when it is once decided that a certain liability or risk
shall be attached to a voluntary relation, the party entering into
that relation takes that risk, but what risks shall be attached to
any relation is a pure question of policy in the particular instance.
And it is the policy of the law that a purchaser is not disentitled by
having come to a nuisance.^*^ "Carrying on an offensive trade for
twenty years in a place remote from buildings and public roads
does not entitle the owner to continue it in the same place after
houses have been built and roads laid out in the neighborhood, to
the occupants of and travelers upon which it is a nuisance." ^** But

i«8 Foster V. Boston, 127 Mass. 290; Reed v. Tnhabitnnts of Nortbfield. 13
Pick, 94; Ck>iiliocton Stone Road v. Buffalo, N. Y. & E. R. Co., 51 N. Y. 57^;
Morse v. Borough of Fair Haven, 48 Conn. 220.

i«* Spalding v. Oakes* Adm'r, 42 Vt. 343; Partlow v. Plaggarty, 35 Ind.
178; Kelly v. Tilton, ^42 N. Y. 263.

i«6 2 Cooley, Bl. § 403; Susquehanna Fertilizer Co. y. Malone, 73 Md. 268,
20 Atl. 900 (reviewing many cases).

i8« Fertilizing Co. v. Hyde Park, 97 U. S. 659; McCallum v. Gcrmautown,
54 Pa. St 40; Brady v. Weeks, 3 Barb. 157; Smith v. Phillips, 8 Phila. 10;
ElUotson V. Feetham. 2 Blng. N. C. 134; BUss v. Hall, 4 Bing. N. C. 183;
Bar well v. Brooks, 1 Law T. 75. And see Hazard Powder Co. v. Volgcr. 7
C. C. A. 130, 58 Fed. 152; IVople v. Detroit White Lead Works, 82 Mich.
471-477, 40 N. W. 735.

lei Holmes, J., in Boston Ferrule Co. v. Hills. 159 Mass. 147-151, 34 N. E.
85, citing oases. Wood, Nuis. §§ 574, 575; 16 Am. & Eng. Enc. Law, 934, note
1, cases collected in number.

!•• Com. V. Upton. 6 Oray, 473.

Ch. 11] THE ANNOYANCE OR INTERFERENCE. 775

it is not accurate to say that it is "wholly immateriar' that the
plaintiff has come to a nuisance. A distinction is recognized, es-
pecially with respect to restraining by an in j unction, ^•^^ between
a long-established business which has become a nuisance in a lo-
cality from increase of business, and a new erection threatened in
such vicinity. A right, however, to commit a private nuisance may
be acquired by prescription, as by an easement.^' ° It seems, also,
that an estoppel to object to a nuisance, to the continuance of which
there is no prescriptive right because the acquiescence is short of
20 years, may be based upon conduct inducing the p:uty causing
the nuisance to incur legal expenditures.^ ^^

237. In determining what annoyance amounts to a nui-
sance, the conrts are governed by practical consid-
erations as to the thing done, the place where, and
the circumstances under ^which, it is done.^^^

A business which is necessary and useful in large communities,
and which is not a nuisance in itself, may become so in view of the
circumstances in the neighborhood in which it is proposed.^ ^''•
'^Two things essential to general prosperity and happiness are
useful trades whereby people are supplied with things necessary in
life, and healthful and peaceful dwellings. And the structures for
habitation and trade cannot well be remote from one another.
Here, therefore, are two interests traveling to one ultimate goal,

!•• Wler's Appeal, 74 Pa. St. 230 (where the erection of a powder maga-
zine was restrahied). And see City of New Castle v. Raney, 130 Pa. St. 546,
18 Atl. 1066.

170 Post, p. 792, ^'Legalized Nuisance," note 250.

iTi Campbell v. Seaman, 63 N. Y. 568; Radenhurst v. Coate, 6 Grant (U. C.)
139; Dewell v. Sanders, Cro. Jac. 490. Cf. City of New Castle v. Raney,
130 Pa. St. 546, 557, 18 Atl. 1066.

iTa John B. Gest, article in 1 Am. Law Reg. & Rev. (N. S.) 112.

ITS Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609; City of Fresno v. Fresno
f^inal & Irr. Co., 98 CaL 179, 32 Pac. 943; Cleveland v. Citizens' Co., 20 N. J.
Bq. 201. Et vide Slanghter-House Case, 16 Wall. 36; New Orleans Gas Light
Co. T. Louisiana Light & Heat Producing & Manuf'g Co., 115 U. S. 650-669, 6
Sup. Ct 252; Aldred's Case, 9 Coke, 57a; Jones v. Powell, Palm. 536. Cf.
Broder ▼. Saillard, 2 Ch. Div. 692-701; Reinhardt v. Mentasti. 42 Ch. Div.
685.

776 NUISANCE. [Ch. 11

yet in constant conflict during the journey. And the courts, in
administering justice between them, necessarily request each to lay
siside something of what pertains to mere convenience and com-
fort, yet they permit each to stand so far on its own rights as not
to be destroyed." ^^* In this unavoidable conflict, the courts will
interfere with the transaction of business, by means of injunction,
with great caution.*^" Public convenience, and even public neces-
sity, does not justify the continuance of a nuisance, or constitute
a reason why an injunction should not be issued. Thus, neither
the advantage nor need that the city of New York should have
some place where it can deposit and utilize its filth justifies a per-
son in carrying on a rendering establishment, so offensive and dis-
agreeable as to render life uncomfortable, nor compels neighboring
residents to submit to such consequences as danmum absque in-
juria.^^* The existence of similar nuisances in the same locality

174 Bisb. Nancont Law, S 418, citing Sanderson v. Pennsylvania Goal Co.,
86 Pa. St. 401; Daniels v. Keokuk Waterworks, 61 Iowa, 549, 16 N. W. 705;
McCaffery's Appeal, 105 Pa. St. 253; Daughtry v. Warren, 85 N. C. 136.
The leading English cases on this point are Hole v. Barlow, 4 O. B. (N. S.)
334; llich v. Basterfleld, 4 C. B. 783; Bamford v. Tumley, 3 Best & S. 66.
And the like will be found discussed in Bigelow, Lead. Gas. 465-467. In
Ball, Lead. Oas. (1884) 406-409, the same language Is employed (see pref-
ace). A further discussion of the English cases will be found in Campbell
V. Seaman, 03 N. Y. 568.

175 <<it would have been wrong, as it seems to me, for this court, in the
reign of Henry YI., to have interfered with the further use of sea coal in
London, because it has been ascertained to their satisfaction, or predicted
to their satisfaction, that by the reign of Queen Victoria both white and
red roses would have ceased to bloom in the temple gardens. If some pictur-
esque haven opens its arms to invite the commerce of the world, it is not for
this court to forbid the embrace, although the fruit of it should be the
sights and sounds and smells of a common seaport and ship-building town,
which would drive the Dryads and their master from their ancient solitudes.**
James, L. J., in Salvln v. North Brancepeth Coal Co., 9 Ch. App. 705-709,
refusing an injunction to stop large commercial works because of alleged
smoke nuisance. "A court exercising the power of chancellor, whose arm
may fall with crushing force upon the every-day business of men, destroying
lawful means of support, and diverting property from the legitimate uses,
cannot approach such cases as this with too much caution." Agnew, J., in
Huckenstine's Appeal, 70 Pa. St. 102-106. Post, p. 799, "Injunction."

iT« Meigs V. Lister, 23 N. J. Eq. 199-205; FerUllzlng Co. v. Hyde Park, 97

Ch. 11] THE AK^'OYA.NCK OR I.NTERFEBENGE. 777

is not necessarily an excuse."^ However, in determining how fai'
locality enters into a nuisance, the courts are governed by practical
considerations.^^" The usefulness,^^* the relative convenience,^*®

tr. S. 669; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268-280, 20 Ati. 900;
Bomington v. Klein, 6 Wldy. Notes Cas. 281; Attorney General v. Council,
etc., of Birmingham, 4 Kay & J. 628. So a livery stable: Craven v. Roden-
hauaen (Pa. Sup.) 21 Ati. 774; Gifford v. Hulett, 02 Vt 342, 19 Aa 230; Pil-
son V. Crawford (Sup.) 5 N. Y. Supp. 882; Robinson v. Smith. 53 Hun, 638,
7 N. Y. Supp. 38; Shivwy v. Streeper, 24 Fla. 103, 3 South. 865. Bt vide
livery stable cases coUected in Webb, Pol. Torts, p. 505; Wood, Nuis. 679-682,
note. Cf. Lippincott v. Lasher, 44 N. J. Eq. 120, 14 Aa 103. Stock yards:
Shirlely v. Railway Co., 74 Iowa, 169, 37 N. W. 133. Manufacturing, produc-
ing "overpowering, intolerable, and crashing vibrations": McCJaffrey's Ap-
peal, 106 Pa. St 253-255.

ITT Euler V. SulUvan, 75 Md. 616, 23 Ati. 845; Aldrich v. Howard, 8 R. I.
246; Fay v. ^Vhitman, 100 Mass. 76; Crossley v. Tomey, 2 Ch. Div. 533.

IT 8 Demarest v. Hardham, 34 N. J. Eq. 469. *'In the Sanderson Case [San-
derson V. Pennsylvania Coal Co., 86 Pa. St 401] the property of a coal com-
pany could not be used without fouling the water. . The great public interests
and the private rights of mining could not be sacrificed to preserve the inferior
right and interest of the lower proprietor. The reason for the general rule
failed, and the rule was not followed." See Ollins y. Chartiers Val. Gas
Co., 131 Pa. St 143-152, 18 Ati. 1012. A slaughterhouse may without offense
be located and conducted in the outsldrts of a city, away from the abodes of
its inhabitants, and in such case it would not be a nuisance; but if the same
business should be operated on a residence street and in dose contact with
the homes of the people, it might become a great offense and a nuisance that
then ought to be abated. Gill, J., in Bielman v. Railroad Co., 50 Mo. App.
151-154, citing Craven v. Rodenhausen (Pa. Sup.) 21 Ati. 774; Whitney v.
Bartholomew. 21 Conn. 213; Wylle v. Elwood, 134 111. 281, 25 N. E. 670;
FUnt V. Russell, 5 Dill. 151, Fed. Cas. No. 4,876; State y. Ball, 59 Mo. 321.

IT » Tanner v. Trustees, etc., of Albion, 5 Hill, 121. Circus: Inchbald y.
Robinson, 4 Ch. App. 388. Et vide Walker v. Brewster, L. R. 5 Bq. 25.
Bawdyhouse: Cranford v. Tyrrell, 128 N. Y, 341, 28 N. E. 614; Miller y. Blue,
43 Kan. 441, 23 Pac. 588; Marsan v. French, 61 Tex. 173; Hamilton y. Whlt-
ridge, 11 Md. 128.

180 Pllcher v. Hart, 1 Humph. (Tenn.) 524; Radcliff v. Mayor, 4 N. Y. 195;
Carroll v. Wisconsin Cent R. Co., 40 Minn. 168, 41 N. W. 661. Cf. Attorney
General v. Consenrators, 1 Hem. & M. 1; Hilton v. Earl, 5 Q. B. 701; Morris
&, B. Ry, Co. V. Prudden, 20 N. J. Eq. 530; Richard*s Appeal, 57 Pa. St 105-
113. That the mill complained of as a nuisance occasioned no more annoy-
ance than other similar mills is proper evidence. Shepard v. Hill, 151 Mass.
540, 24 N. E. 1025.

778 i^uisANCE. [Ch. 11

priority in establishment,*^* danger,*"* temporary character, law-
fulness of object,**'^ and similar considerations are given due
weight.*^* It is constantly said to be the law, however, that bene-
ficial character will not excuse or justify the continuance of a pub-
lic nuisance,**" and that no place is convenient or proper for the
maintenance thereof.***

238. Annoyance, to constitute a nuisance, must cause sub*
stantial damage; for damages are the gist of the
^^rong, unless there is a physiccd invasion of, or
interference with, another's property, in which case
the presence or absence of actual damage is imma-
terial.

The creating or continuing of a nuisance in any form which in-
volves the physical invasion of or interference with another's prop-
erty is a wrong for which at least nominal damages may be recover-

181 WhltQey V. Bartholomew, 21 Conn. 213; Wlers' Appeal, 74 Pa. St 230;
Robinson v. Baugh, 31 Mich. 290; Rhodes v. Dunbar, 57 Pa. St. 274.

182 ADto, p. 7G9; McAndrews v. Gollerd, 42 N. J. Law, 189; Williams v. Bast
India Co., 3 East, 192.

188 Ball V. Ray, 8 App. Cas. 467; Harrison v. Southwark & Y. Water Co.
[1891] 2 Ch. 409.

184 Tuttle V. Church, 53 Fed. 422, in which many cases are collected and
considered. As to abatement by improved mechanism: Weil v. Sdinltz, 33
How. Prac. 7. Constancy of nuisance as an element: Fay v. Whitman, 100
Mass. 76; Meigs v. Lister, 23 N. J. £q. 199; Campbell v. Seaman, 63 N. Y.
56a

185 Cases collected in Wood, Nuis. S 19; 16 Am. & Eng. Enc. Law, 032, note
1. In People v. Detroit White Lead Works, 82 Mich. 471-479. 46 N. W. 735,
Grant, J., said that no case has been cited, and we think none can be found,
sustaining the continuance of a business in the midst of a populous com-
luuuity which constantly produces odors, smoke, and soot of such a noxious
character as to such an extent that they produce headache, nausea, vomiting,
and other pains and aches injurious to health, and taint the food of the in-
habitants. Et vide City of Grand Rapids v. Weiden, 97 Mich. 82, 56 N. W.
233; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 Atl. 900; Lurssen
V. Lloyd, 76 Md. 360, 25 Atl. 294.

180 Bamford v. Turnley, 3 Best & S. 62. The jury cannot be asked whether
the causing of a nuisance was a natural and reasonable use of defendant's
own land.

Ch. 11] THE ANNOYANCE OR INTERFERENCE. 779

ed.**^ Neither absence of actual *•• damages, nor even benefit from
the nuisance, nor abatement, will prevent such recovery.^®' Thus,
the overhanging of another's land is a nuisance for which an action
will lie without allegation or proof of actual damages.**® So, to
cause water to flow wrongfully upon another's land in such a way
that its continuance would create* an easement is sufficient to justify
an injunction, irrespective of damages.**^

But when the act complained of is lawful in itself, a different rule
prevails. Then it is only when some actual damage is done that a
right of action ensues.*"^ Where the nuisance complained of is in-
jariouB to property, the damage must be substantial. '^Everything
must be looked at from a reasonable point of view. The law does
not regard a trifling inconvenience, but only large, sensible incon-
veniences and injuries, which sensibly diminish the comfort, en-
joyment, or value of the property which they aflfecV *•• To main-
tain an action for nuisance against the proprietor of a lawful busi-
ness carried on in neighborhood of another's premises, it must be
shown that the latter has suffered a substantial injury because of

i«T Frank v. New Orleans & G. R. Co., 20 La. Ann. 25; Tootle v. Clifton, 22
Ohio St 247; Gasebeer v. Mowry, 03 Am. Dec. 766; Munroe v. Stickney, 48
Me. 462; Blodgett v. Stone, 60 N. H. 167; Alexander t. Keir, 2 Rawle (Pa.)
83; Gooper v. Dolvin, 56 Am. Rep. 872.

188 Kimel v. Kimel, 4 Jones (N. G.) 121; Marcy v. Fries, 18 Kan. 353. Et
vide Francis v. Schoellkopf, 53 N. Y. 152; Wesson v. Washburn Iron Go., 13
AUen, 05.

!•• Gleason v. Gary, 4 Gonn. 418; Gall y. Buttrick, 4 Gush. 345.

i»o Tucker v. Newman, 11 Adol. & E. 40; Baxter v. Taylor, 4 Barn. & Adol.
72; Fay v. Prentice, 14 Law J. G. P. (N. S.) 208; Bellows v. Sackett, 15 Barb.
96; Godman v. Evans, 7 Allen, 431; post, p. 799, "Abatement"; ante, p. 746,
note 12.

101 learned v. Gastle, 78 Gal. 454, 18 Pac. 872, and 21 Pac. 11 (see cases
t-olleclcd on pages 455-461; 78 Gal., page 872, 18 Pac, and page 11, 21 Pac.);
Gooper v. Randall, 53 111. 24. The right of a riparian owner to have the stream
flow as it is wont to do by nature, subject to the reasonable use of other pro-
prietors, is a substantial right which a court of equity will enforce thougih
the damages flowing from such diversion are slight or merely nominal (Hoyt,
J., dissenting). Rigney v. Tacoma Light & Water Go. (Wash.) 38 Pac. 147.

!•> 3 Suth. Dam. § 1085.

108 St Helens Smelting Go. v. Tipping, 11 H. L. Gas. 642; Pickard v.
Oillins, 23 Barb. 444; Malum v. Brown, 13 W^end. 261; Barnes y. Hathom,
54 Me. 124; Rhodes v. Dunbar, 57 Pa. St. 274.

780 NUISANCE. [Ch. 11

an unlawful act or act of negligence on the part of the propnetor in
the conduct of such business. Neither depreciation in the selling
or rental value of real estate, nor some personal discomfort or
annoyance resulting from such business, necessarily gives a cause
of action.*** If, however, the effect is such that the property can-
not be enjoyed as fully as before, or renders It unfit for habitation
by increased dangers, or has substantially impaired its value, the
law will treat the alleged wrong as a nuisance.* •* It is not neces-
sary that the owner should be driven from his dwelling.*** It is
not, however, strictly accurate to say that the maxim "De minimis
non curat lex" applies.**^ A nuisance may be independent of ac-
tual damages.***

Stibiftanticd Interference vriJth Comfort,

Where the wrong complained of is the interference with the ordi-
nary physical comfort of human existence, it is not necessary that
the offense should amount to an injury to health. The discomfort
must, however, be physical, and not such as depends upon the taste
or imagination.*** In such cases the degree of harm must be great-
er than in an action for injury to property.*** It was said in a lead-
ing English case that '^here may be such a thing as legal nuisance
from noise in a manufacturing or other populous town." *** 'T3ut a

194 Applied to operation of a gas generator, Keiser y. Mahanoy City Gas
Co., 143 Pa. St 276, 22 Atl. 759. Compare Robb v. Carnegie Bros. & Co., 145
Pa. St., 324, 22 Atl. 049.

188 Ryan v. Copes, 11 Rich. Law (S. C.) 217; Waters-Pierce Oil Co. v.
Cook, G Tex. Civ. App. 573, 26 S. W. 96; Lansing v. Smith, 8 Cow. 146;
Gibson V. Donk, 7 Mo. App. 37.

i»o Bohan v. Port Jervis Gas-Llght Co.. 122 N. Y. 18, 23 N. E. 246; Waters-
Pierce Oil Co. V. Cook, 6 Tex. Civ. App. 573, 26 S. W. 96.

i»T Wood, Nuis. § 7.

lOH Ante, p. 779, notes 187-191.

i»o Cleveland v. Citizens* Gas-Llght Co., 20 N. J. Bq. 201; Coker v. Birge,
9 Ga. 425; Salvin v. North Brancepeth Coal Co., 9 Ch. App. 705.

200 Bigelow, Lead. Cas. 467; Ball, Lead. Cas. 410; Walter v. Selfe, 4 Dc
Gex & S. 315; Beardmore v. TredweU, 3 Giff. 683; Crump y. Lambert, L. R.
3 Eq. 409; post, p. 847, negligence cases as to blasting, powder magazines,
dangerous places, etc.

toi Soltau V. De Held. 2 Sim. (N. S.) 133. See case above, where the
ringing of bells by a Catholic church in London was enjoined. Davis v.
Sawyer, 133 Mass. 289; Leete v. Pilgrim Congregational Soc., 14 Mo. App.

Ch. 11] THE ANNOYANCE OR INTERFERENCE. 781

nuisance of this kind is much more difficult to prove than when the
injurj' complained of is the demonstrable effect of a visible or tan-
gible case, as when waters are fouled by sewerage, or when the
fames of mineral acids pass through chimneys of factories or other
works over lands or houses, producing deleterious physical changes
which science can trace and explain. A nuisance by noise (sup-
posing malice to be out of the question) is emphatically a question
of degree. If my neighbor builds a house against a party wall next
to my own, and I hear from the wall more than is agreeable to me
of the sounds from his nursery or music room, it does not follow^
even if I am nervously sensitive or in infirm health, that I can bring
an action or obtain an injunction. Such things, to offend against
the lawj must be done in a manner which, beyond fair controversy^
ought to be regarded as excessive and unreasonable." *®*

50O; Harrison v. Rector, etc., of St. Mark's Church, 12 Phlla. 259. Compare
Uogers V. Elliott, 146 Mass. 349. 15 N. B. 768; Trustees of First Baptist
Church V. Utica & S. R. Co., 6 Barb. 313. Steam whistle may constitute a
nuisance. Parker v. Union Woolen Co., 42 Conn. 399; Knight v. Goodyear's
India Rubber Glove ManuTg Co., 38 Conn. 438. Et vide interesting note
7, p. 944, 16 Am. & Eng. Enc. Law, by L. M. Countryman, Esq.

ao2 Lord Selbome in Gaunt v. Fynney, L. R. 8 Ch. App. 8-11, 27 Ch. Div.
43. Et vide Newson v. Pender, Vice Chancellor Knight-Biiice, quoted in
Underh. T6rt9, 415: The criterion is whether the inconvenience should be
considered as more than a mere delicacy or fastidiousness, or an inconven-
ience materially interfering with the ordinary comfort, physically, of human ex-
istence, and not merely according to elegant or dainty habits of living, but ac-
cording to the plain, sober, and simple notions of English people. Vice Chancel-
lor Knight-Bruce in Walter v. Selfe, 4 De Gex & S. 315-322; Crump v. Lam-
bert, L. R. 3 Eq. 409; Soltau v. De Held, 2 Sim. (N. S.) 133; Baltimore & P. R.
Co. V. Fifth Baptist Church, 108 U. S. 317-529, 2 Sup. Ct. 719; Cooke v. Forbes,
L. R. 5 Eq. 166; Ross v. Butler, 19 N. J. Eq. 294; Attorney General v. Steward^
20 N. J. Eq. 415; Duncan v. Hayes, 22 N. J. Eq. 25; Columbus Gas Co. v. Free-
land, 12 Ohio St 392-399; Blanchard v. Reybum, 10 Phila. 427; Cooper v.
Randall, 53 111. 24. Mere theoretical injury is not sufficient Thompson v.
Crocker, 9 Pick. 59. Compare Oakley Mills v. Neese, 54 Ga. 459. Injury
to plaintifTs feelings by being deprived of lateral support to land intended
for burial place cannot be considered where the defendant intended no in-
jury, although he was grossly careless. White v. Dresser, 135 Mass. 150;
Meagher v. Driscoll, 99 Mass. 281. Plaintiff's recovery for damages oc-
casioned 1?y dumping dead cattle into a stream of water which he uses
does not extend to the mental or bodily siiffering of his wife or children, nor

782 NUI8AKCK. [Ch. 11

KINDS OF NUISANCES.

239. Nuisances for which a private action will lie may

be either —

(a) Public, private, or mixed;

(b) Continuing; or,^

(c) Legalized.

SAME— PUBLIC, FBIVATE, AND MIXED NUISANCES.

240. To entitle a private person to maintain an action for

a public nuisance, the injury complained of must
be—
(a) Peculiar to the plaintiff in kind, not merely in de-

(b) Substantial, not fanciflil or evanescent;

(c) The proximate result of the conduct complained of.^

Kinds of Nuisances for Which a Private Action may Lie.

Public nuisances affect the public, and are annoyances to all the
king's subjects. They are public wrongs.'®* They result from the
violation of public rights, and produce no special injury to one m^e
than another of the people, and may be said to have a common effect
and produce a common damage.'®* The criterion by which to deter-
mine whether a particular case is to be classed as a public or a pri-
vate nuisance seems to depend upon the consideration of whether
it be indictable or not. Moreover, while a private nuisance, generally
speaking, is created upon the premises of the defendant, a public nui-
sance may be created either upon defendant's premises or upon the
land of the public.*®* Mr. Wood '®^ distinguishes mixed nuisances,

to bis own mental anguish caused by tbeir suffering. Gulf, C. i^ S. F. Ry.
Co. V. Reed (Tex. OIt. App.) 22 S. W. 283.

»08 Brett, J., in Benjamin v. Storr, L. R. 9 C. P. 400-M)C.

204 3 Bl. Comm. § 217. Kt vide Stepb. Dig. Cr. Ijiw, art. 170; Weiwon v.
Wasbbum Iron Co., 13 Allen (Mass.) U5-101.

«0B Wood, Nuls. S 14.

2oeBigelow, Lead. Cas. 4G5. As permitting a sewer to overflow: Waters

SOT Wood, Nois. § 10.

Ch. 11] KINDS OF NUKANCKS. 783

which are both public and priyate in theu* nature (public, in that
they produce injury to man^' persons, or to all the public; and pri-
vate, because at the same time they produce a Bx>ecial and particular
injury to private rights), which subject the wrongdoer to indictment
by the public and to damages at the suit of persons injured. Pri-
vate nuisances, on the other hand, are injuries that result from the
violation of private rights and produce damages to but one or a few
persons, so that they cannot be said to be public.*®* With public
nuisances pure and simple there is no further logical concern here.***

V. City of Newark, 56 N. J. Law, 361, 28 Atl. 717; Davis v. Winslow, 81 Am.
Dec. 573; Mayor v. Marriott, 60 Am. Dec. 326; Rung v. Shoneberger, 26 Am.
Dec. 05; South Carolina R. Co. v. Moore, 73 Am. Dec. 778. . MitcheH, J., in
Aldrich v. Wetmore, 52 Minn. 164-171, 53 N. W. 1072, says: "It Is the nature
of the right aCTected, and not the number who suffer, which determines wheth-
er a private action wiU lie for creating or maintaining a public nuisance."

20« Burdltt V. Swenson, 67 Am. Dec. 065. But a fruit stand on the street
is. State y. Berdetta, 38 Am. Rep. 117. Obstruction of an alley has been
held not to be a public nuisance. Bagley y. People, 38 Am. Rep. 192.

2o» Some modem cases on public nuisance may, however, be instructive
and useful. As to privies, see Com. v. Roberts, 155 Mass. 281, 29 N. E. 522.
Deposit of night soil: State v. Board of Health of City of Newark, 54 N. J.
Law, 325, 23 Atl. 949 (et vide Dierlis v. Commissioners, 142 111. 197, 31 N. fi.
496; Town t, Carins, 44 Mo. App. 88). Staimant watw: City of Rochester v.
Simpson, 134 N. Y. 414, 31 N. E. 871. Manufacturing fertilizers: People v.
Rosenberg, 138 N. Y. 410, 34 N. B. 285; State v. Wolf, 112 N. C. 889, 17 S.
K. 528; Darcantel v. Refrigerating Co., 44 Ia. Ann. 032, 11 South. 239; State
v. Neldt (N. J. Ch.) 19 Atl. 318; Seacord v. People, 121 lU. 02i{, 13 N. E. 194.
Briclikiln: Huckenstine's Appeal, 70 Pa. St. 102; Com. v. Miller, 139 Pa.
St. 77, 21 Atl. 138. Hog pens: Com. v. Perry, 139 Mass. 198, 29 N. B. 656;
Gay V. State, 90 Tenn. 645, 18 S. W. 200. Coal shed: Wylie v. Elwood, 134
m. 281, 25 N. B. 570. Fire^ngine house: Van De Vere v. Kansas City, 107
Mo. 83, 17 S. W. 695. Permanent obstruction to public street, as a bridge:
Rybee v. State, 48 Am. Rep. 175; Reed v. City of Birmingham, 92 Ala. 339, 9
South. 161; Laing v. City of x\mericus, 86 Ga, 750, 13 S. K. 107; Chicago, B.
A Q. R. Co. V. City of Quincy, 136 111. 480, 27 N. E. 232; Marine Ins. Co. v.
St Louis, 1. M. & S. Ry. Co., 41 Fed. 643. The draining of offensive and dan-
gerous matter of a large factory into the public gutters of a city is a nui-
sance per se detrimental to health. Board of Health v. Maginnis Cotton Mills,
46 La. Ann. 800, 15 South. 164. Approaches to a bridge: Com. v. Pittston
Ferry Bridge Co., 148 Pa. St 621, 24 Atl. 87. Running traction engine on
highway: Com. v. AUen, 148 Pa. St 358, 23 Atl. 1115. Electric work: United
States IliumlHatii^ Co. v. Grant, 55 Hun, 222, 7 N. Y. Supp. 788. Powder

784 NOISANCE. [Ch, 11

Private Action for Public Xuimiice.

Although for a public nuisance, so far as it affects the public gen-
crally,^*® no private action lies, y«t an individual who suffers a spe-
cial injury or damage more than the rest of the community at large
may have an action in respect to his sx>ecial damage.^^^ Such special
damage is not sufficient if it be trifling. It must be substantial, as
where it seriously affects the substance and value of property.* ^ * It is
not sufficient if remote.'^* To support such an action the damage must

magazine: Laflin & R. Powder Co. v. Tearney, 131 111. 822, 23 N. B. 389.
Rock-crushing machined City of Kansas v. McAleer, SI Mo. App. 433. As to
constitutionality of statute defining public nuisances, and providing for their
redress and prevention, see ScovlU v. McMahon, 62 Conn. 378^ 26 Atl. 479;
City CouncU of City of Charleston v. Werner, 38 S. C. 488, 17 S. E. 33; Jen-
kins V. BaUantyne, 8 Utah, 2i5, 30 Pac. 760; Ex parte Sing Lee, 96 Cal. 3;>4.
31 Pac 245; People v. Board of Health, 58 Hun, 595, 12 N. Y. Supp. 561;
State V. Earnhardt, 107 N. C. 789, 12 S. E. 426. Abatement by board of health:
Greene v. Inhabitants of Milford, 139 Mass. 69, 29 N. E. 376; Hochstrasser v.
^lartin, 62 Hun, 1C5, 16 N. Y. Supp. 558; Board of Health & Vital Statistics of
Hudson Co. v. New York Horse Manure Co., 47 N. J. Eq. 1, 19 Atl. 1098. As
to injunction, see Dlerks v. Commissioners, 142 lU. 197, 31 N. E. 496; HiU v.
City of New York, 63 Hun, 633, 18 N. Y. Supp. 399, affirming 15 N. Y. Supp.
393. Cf. Com. V. Croushore, 145 Pa. St 157, 22 Atl. 807. As to summary con-
demnation of nuisances by municipal authority, see article by J. B. Uhle, 30
Am. Law Reg. (N. S.) 157. As to mandamus, see People v. Newton, 20 Abb.
N. C. 387.

910 ''It seems that, where an Indictment may be maintained for a common
nuisance,— that is, for that which is an injury to all the queen's subjects,—
there is no remedy by action unless you can prove individual damage. That
is undisputed law. But I am not aware that the same rule Is appUed where
it has not been an injury to tlie whole of the public, in contravention of the
law, but an Injury to the inhabitants of a particular district." Channell, B., in
Harrop v. Hirst, 38 Law J. Exch. 1-5, L. R. 4 Exch. 43; Washb. Easem. § 570.

211 lyeson v. Moore, Ld. Raym. 486. Here plaintiff was prevented, by de-
fendant's obstruction of a highway, from using the way for hauling coals from
bis colliery. Plaintiff was allowed to recover the special damages suffered by
him because of the deterioration in value of the coal by delay. Maynell v.
Saltmarsh, 1 Keb. 847; Hart v. Basset, Jones, 156. That the nuisance is also
indictable will not prevent action. Hart v. Board (N. J. Sup.) 29 Atl. 490;
State V. Wilkinson, 21 Am. Dec. 560.

212 Talbott V. King, 32 W. Va. 6, 9 S. E. 48; Innis v. Railway Co., 76 Iowa,
165, 40 N. W. 701; Hay v. Weber, 79 Wis. 587, 48 N. W. 859.

2ia Zettel v. City of West Bend, 79 Wis. 316, 48 N. W. 379. The owner of a

Ch. 11] KINDS OF NUISANCES. 785

differ in kind, as well as in degree, from that suffered in common.
That the plaintiff suffers more inconvenience than others, from his
proximity to the nuisance, is not enough,"^* A liquor nuisance is
ordinarily exclusively a public one.^^* No employer has such a prop-
ertv in his workmen or in their services that he can maintain a suit as
for a nuisance against the keeper of a house at which they voluntari-
ly buy intoxicating liquors, end thereby become drunk and unfit for
work.*^* The right to maintain a private action for a liquor nuisance
may, however, be confeiTed by statute; ^^^ and, in a criticised case,*^*
a saloon has been held to be a nuisance per se.^^® A public nui-
sance which may give rise to a private action, but only where the

buUdlng, who occupied It as a store, cannot enjoin the erection of bay windows
on an adjoining building, extending 18 to 20 inches into the street, the damage'
which may result from the obstruction of the view being too remote and
speculative to constitute the basis of a private action. Hay v. Weber, 70
Wis. 587, 48 N. W. 859. Damage from a liberty pole in a public street, sound,
properly secured and protected, but caused to fall by an extraordinary wind,
would be too remote. City of AUegheny v. Zimmerman, 40 Am. Rep. 649. But
the damage need not be direct. It may be consequential. Hughes v. Heiser,
2 Am. Dec. 459. Iveson v. Moore (1699) Holt, 10; Ilicket v. MetropoUtan Ry.
Ck). (1867) L. R. 2 H. L. Cas. 175, 30 Law J. Q. B. 205; Caledonian Ry. Ck). v.
Walker's Trustees, 7 App. Cas. 259; Ford v. Metropolitan Ry. Co. (1886) 17 Q.
B. Div. 12. And see London Ass'n v. London Committee [1832] 3 Ch. 242-270.

21* 16 Am. & Eng. Enc. Law, 976 (collecting great number of cases under
1 Wood, Nuls. § 653). Where a complaint to abate a nuisance does not
explicitly state that plaintiff has sustained an injury different in kind to
the general public, it is insufficient on special demurrer; but, when such in-
Jury appears by Inference, it is proper to overrule a motion for ;fudgment
on the pleadings at the commencement of the trial. Hargro v. Hodgdon, 89
('al. 623. 26 Pac. 1106.

2i5ijquor nuisance: State v. Stanley, 84 Me. 555, 24 Ati. 98^; State v.
Fleming, 86 Iowa, 294, 53 N. W. 234; State v. McEnturff, 87 Iowa, 691, 55 N.
W. 2; Johnson v. People, 44 111. App. 642; State v. Farley, 87 Iowa, 22, R^
X. W. 1089. Injunction by state to abate liquor nuisance: State v. Saund-
ers (N. H.) 25 Atl. 58.S; Maloney v. Traverse, 87 Iowa, 306, 54 N. W. 155.

2i« Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 13 Sup. Ct 822. Et
vide In re Swan, 150 U. S. 637-6^0, 14 Sup. Ct. 225; Barfleld v. Putzel. 92
Ga. 442, 17 S. E. 616.

217 Craig V. Plumkett, 82 Iowa, 474, 48 N. W. 984.

21 « 7 Harv. Law Rev. 487.

2i» Haggart v. Stolilin, 137 Ind. 43, 35 N. B. 997.

LAW OF T0KT8 — CO

78G NUISANCE. [Cll. 11

plaintiff shows some wrong done to him different from that suffered
by the general public; as that his adjoining property has been in-
jured in value.^*® Tlie unreasonable and unnecessary obstruction
of a navigable stream may be a public and at the same time a pri-
vate nuisance, as to those individuals who suffer a particular dam-
age therefrom distinct and apart from the people at large. The
difference must be not merely in extent, but also in kind. Accord-
ingly, the discharge of garbage by a city, interfering with fishing,
is an exclusively public wrong. An individual may not enjoin such
discharge.^ ^^ On the other hand, where one by dams and storage
booms unnecessarily obstructs and delays another's log-driving oper-
ations, the latter is entitled to a private action, although the nui-
sance be also a public one. Streams navigable for flooding logs are
governed by the rules for highways.*^^

But mere personal inconvenience, as delay in a highroad, without
pecuniary loss, is not suflScient to sustain a private action, even if
the degree of personal inconvenience suffered be in excess of that
suffered by the rest of the public.^** On this principle, a private
citis^n may not maintain a private action for an injury to the high-
way done by an elevated railway company, where it does not appear
that he owns the sail abutting the section of the railway complained

220 Redway v. Moore, 2 Idaho, 1036, 29 Pac. 104; Cranford v. Tyrrell, 128
N. Y. 341. 28 N. E. 514; Miller v. Blue, 43 Kan. 441. 23 Pac. 688.

2 21 Kiiehn v. City of Milwaukee. 83 Wis. 583, 53 N. W. 912, where the
complaint alleged that a sewer dimiuished the value of a doolc, plaintiff can-
not recover if the dock was at all times in possession of his tenant, and
there was no diminution in rents because there was no special damage.
Attwood V. City of Bangor, 83 Me. 582, 22 Atl. 466. Et vide Robb v. Cai^
iiegle, 145 Pa. St. 324, 22 Atl. 649.

222 Page V. Mille Lacs Lumber Co., 53 Minn. 492, 55 N. W. 608, 1119. So.
where the overflow of a dam puts to expense of repairing a highway, a town
uiay recover damages. Inhabitants of Charlotte v. Pembroke Iron Works,
82 Me. 391, 19 Atl. 902. Interference with right to access to navigable stream
may be basis of private action. Lyon v. Fishmongers* Co., 1 App. Gas. 662;
Rose V. Miles, 4 Maule & S. 101.

223 Winter bottom v. Lord Derby, L. R. 2 Exch. 316; Caledonian Ry. v.
Ogllvy, 2 Macq. H. L. Cas. 229; Metropolitan Board of Works v. McCarthy,
li. R. 7 H. L. Cas. 243. Cf. Hubert v. Groves, 1 Esp. 14& Et vide West
.Tersey R. Co. v. Camden, G. & W. Ry. Co. (N. J. Ch.) 29 Ati. 423. Cf. Kaje
V. Chicago, St. P., M. & O. Ry. Co. piinn.) 59 N. W. 493.

Oh. 11] KINDS OF NUISANCES. 787

of, or that he has sustained injury by encroachment upon any right
appurtenant to his premises.*** But where, by reason of one's
wrongdoing, as by tearing up a street and obstructing the side-
walk,*** or by causing horses and vans to stand in the street out-
side of another's shop for an unreasonable length of time,**® or by
otherwise obstructing access to the latter's place of business, where-
by his custom falls oflf and he suffers damages,thelatter may maintain
his private action. A private action, in general, may be maintained
to recover damages to property caused by operating in the vicinity
works and machinery which fill the air with smoke and cinders and
render it offensive and injurious to the health, and shake the
premises so as to render occupation uncomfortable, though all per-
sons owning estates in the vicinity have sustained similar injuries
from the same cause.**^

"4 Adler v. MetropoUtan El. R. Co., 138 N. Y. 173, 33 N. E. 935; Pitts-
burg, Ft W. & C. Ry. Co. V. Cheevers, 44 lU. App. 118; Dilley v. Wilkes
Barre & K. P. Ry. Co.. 12 Pa. Co. Ct. R. 270; Zettel v. City of West
Bend. 79 Wis. 316, 48 N. W. 379; BiUard v. Erhart, 35 Kan. 611, 12 Pac. 39;
Stufflebeam v. Montgomery, 2 Idaho, 763, 26 Pac. 125; ante, p. 764. So,
erection of a dam over a navigable stream will not be enjoined on applica-
tion of one who has sustained no special or personal injury. Esson v. Wat-
tier. 25 Or. 7, 34 Pac. 756.

226 Aldrich V. City of Minneapolis, 52 Minn. 164, 53 N. W. 1072; Dubach
V. Hannibal & St. J. R. Co., 89 Mo. 483, 1 S. W. 86; Glaessner v. Anheuser-
Busch Brewing Ass'n, 100 Mo. 508, 13 S. W. 707; Canton Cotton-Warehouse
Co. V. Potts. 68 Miss. 637, 10 South. 448; Gardner v. Stroever, 89 Cal. 26,
26 Pac. 618. Compare Lalskie v. Chicago, St. P., M. & O. Ry. Co., 44 Minn.
438, 46 N. W. 912, with Smith v. Putnam, 62 N. H. 369. But damage from
obstruction of view from store by erecting a window extending 18 or 20 inches
Into the street is too remote for private action. Hay v. Weber, 79 Wis. 587,
48 N. W. 859.

i2« Benjamin v. Storr, L. R. 9 C. P. 400; Rose v. Groves, 5 Man. & G. 613.

227 Wesson v. Washburn Iron Co., 13 Allen, 95, where an iron furnace dis-
turbed the comfort of the guests in the Wesson tavern house, and deprived
plaintiff of gains. So a steam engine puUing logs: Adams v. Ohio Falls
Car Co.. 131 Ind. 375. 31 N. E. 57. A gas factory: Bohan v. Port Jervis
Gaslight Co., 122 N. Y. 18, 25 N. E. 246. A fertilizing factory: Susque-
hanna Fertilizer Co. v. Malone, 73 Md. 268, 20 Atl. 900. Generally as to
acid fumes: Rex v. White, 1 Burrows, 333; Crump v. Lambert, L. R. 3 Eq.
409; Cooke v. Forbes, L. R. 5 Eq. 166.

788 liuiSAKCB. [Ch. 11

Private Nuisunces.

The term "private nuisance" is used indiscriminately for a private
nuisance, as defined, and for a mixed nuisance, as distinguished, by
Mr. Wood. Indeed, the ordinary conception of a private nuisance
would seem to be tliat it is any nuisance for vs^hich an action would
lie on behalf of a private individual. There are, however, many
cases which w^ould seem to be private nuisances pure and simple, —
as nuisance to private ways, to adjacent and subjacent support,
water courses, surface waters, overhanging another's land, damages
by an upper tenant of a building to a tenant of a lower story.- ^*
Generally, a landowner is bound to prevent private nuisance to his
neighbor by reason of his erection on his own premises.^**

SA.ME— CONTINUING NUISANCE.

241. This subject has already been sufBcienily considered.^

SAME— LEGALIZED NUISANCE.

242. Where the law has authorized the conduct com-

plained of, which would otherwise be a nuisance,
there can be no proper interference therewith,
either by the act of the party or by judicial pro-
ceeding.

Legalized nuisance can scarcely be said to be a felicitous term.
It is like calling a crime lawful. However, the term has passed into
general use. What it means would seem to be this: To constitute
a nuisance there must be a breach of legal right; or, as Mr. Cooley
puts it, a mere annoyance without fault is not a nuisance.**^ Ac-
cordingly, if authority to do a given act is conferred, either by stat-
ute or by common law, which, but for such authority, would consti-
tute a nuisance, the damage suffered in consequence is damnum
absque injuria. Such damage is "incident to an authorized act."
Within the limits of such authority, the parties defendant are, in

22« Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85.

22» Bellows V. Sackett, 15 Barb. 96; Benson v. Suarez, 19 Abb. Prac. 61.

230 Ante. p. 407.

281 Cooley, Torts, p. 671.

<Jh. 11] KINDS OF NUISANCES. 789

the absence of negligence, completely protected from interference
with the alleged nuisance, either by the act of the parties in the
abatement of the nuisance, or by judicial proceedings, public or pri-
vate, in law or in equity.*'*

Nuisance Authorized by Statute,

The authorization of a statute may be of three types: (1) The
statute may authorize a nuisance; (2) it may authorize ceri:ain
works, provided they be done without causing a nuisance; (3) it
may authorize the nuisance itself, if necessary as a last resort**'
On the one hand, a legislature, or a municipal corporation when
sufficiently empowered, may declare places or property, used to the
detriment of public interest or to the injury of health, morals, or
the welfare of the community, a nuisance, although not such at com-
mon law. But neither may decree the destruction or forfeiture of
property used so as to constitute a nuisance, and appoint officers to
execute its mandate as a punishment of the wrong, or even to pre-
vent the future illegal use of the property, it not being a nuisance
IHjr se.*'* On the other hand, the legislature may determine by its
laws that not to be a nuisance which would otherwise be a nuisance,
upon the ground that the legislature is ordinarily the proper judge
of what the public good requires.*" Thus, it may authorize manu-
al* Hinchman v. Patterson Horse R. Co., 86 Am. Dec. 252.
288 Managers of the Metropolitan Asylum Diet. v. Ilill, G App. Cas. 193;
Truman v. Railway Co., 29 Ch. Div. 85>-108, 11 App. Cas. 45; Biscoe v. Rail-
way, L. R. 16 Eq. 636; Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. B. 537;
Edmondson v. City of Moberly, 98 Mo. 523, 11 S. W. 990; Eastman v. Amos-
keag Manurg Co., 82 Am. Dec. 201.

284Lawton v. Steele. 119 N. Y. 220, 23 N. E. 878; People v. Board of
Health of City of Yonkers, 140 N. Y. 1, 35 N. E. 320. Bnt act may be void,
e. g. because of class legislation; as where manufacturers were exempted from
an ordinance declaring smoke a nuisance. State v. Sheriff of Ramsey Co., 48
Minn. 236, 51 N. W. 112; and where municipal charter does not empower city
council to define a public nuisance. City of St Paul v. Gilflllan, 36 Minn. 298,
31 N. W. 49. Et vide Everett v. City of Council Bluffs, 46 Iowa, 66; Yates
V. Milwaukee, 10 Wall. 497; Clark v. Mayor, etc., of Syracuse, 13 Barb. 32;
Underwood v. Green, 42 N. Y. 140. A municipal license to carry on an ob-
jectionable business is entitled as evidence to high consideration, but is not
concluaive that the business Is not a private nuisance. Ryan v. Copes, 73 Am.
Dec. 106.
«86 Bancroft v. City of Cambridge, 126 Mass. 438-440.

790 ^ NUISANCE. [Ch. 11

factures to notify their workmen by ringing bells, or using whistles
and gongs, in such a way that, but for legislative sanction, a nui-
sance would exist.^^®

Whenever the exercise of a right conferred by law for the benefit
of the public is attended with temporary inconvenience to private
parties, in common with the public in general, such parties are not
entitled to damages therefor. This, again, is "damage incident to
authorized act." Thus, if a bridge, constnicted in accordance with
legislative authority, interferes with navigation, the injury to pri-
vate persons is damnum absque injuria.^^^ In the same way, the
incidental injury which results to the owner of property situated
near a railroad, caused by the necessary noise, vibration, dust, and
smoke from the passing trains, which would clearly amount to an
actionable nuisance if the operations of the railroad were not au-
thorized by the legislature, must, if the running of the trains is so au-
thorized, be borne by the individual without compensation or remedy
in any form.*^®

However, the legislative authority, to afford this immunity, must
be express, or clearly and unquestionably implied, from powers ex-
pressly confeiTed, so as to make it appear that the legislature con-
templated the doing of the very act which occasioned the injury.
And even in such a case, the exemption does not extend to the claim
of a private citizen for any damage, special inconvenience, or dis-
comfort not experienced by the public at large.^^® Therefore, for
example, the owner of a lot abutting on the public street may re-

«»• Sawyer v. Davis, 13G Mass. I'SQ.

237 Hamilton v. Railroad Co., 119 U. S. 280, 7 Sup. Ct. 206, considered in

Rhea v. Railroad Co., 50 Fed. 20; U. S. v. North Bloomfield Gravel M!n.

Co., 53 Fed. 627.

238Carron v. Wisconsin Cent. R. Co., 40 Minn. 1G8. 41 N. W. 661; Beide-
man v. Atlantic City R. Co. (N. J. Ch.) 19 Atl. 731.

28» Bohan v. Port Jervls Gas Light Co., 122 N. Y. 18, 25 N. E. 246; Hill v.
City of New York, 139 N. Y. 495, 34 N. E. 1090; Id., 63 Hun, 633. 18 N. Y.
►Supp. 309; Bacon v. City of Boston, l.")4 Mass. 100, 28 N. E. 9, collecting ca.ses
at iMige 102, 154 Mass., and papp 9. I'S X. K.: Kvaus v. Chicago, St. P., M. &
O. Ry. Co., 86 Wis. 597, 57 N. W. 354. Where the terms of a statute are not
imperative, but permissive, the fair inference is that the legislature intended
that the discretion as to the use of the general powers there conferred should
be exercised in strict conformity with private rights. Lord Watson, in
Managers v. Hill, L. R. 6 H. L. 193-213.

Ch. 11] KINDS OP KUISANCES. 791

cover damages against a railroad laid on such street, the operation
of which darkened and polluted the air coming from that part of
the street upon the lot.^** However, consequential annoyance,
which may necessarily follow the running of tlie cars on the road
with reasonable care, is damnum absque injuria; but the exemp-
tion extends only to the limit of legislative authority. When the
authority ceases, the exemption ceases.^** The authority of a rail-
road company to bring its tracks within the limits of the city of
Washington did not authorize it to construct shops and engine
houses in the immediate vicinity of a church where services had
been held during the week for a number of years before the erection
of such shops.^** While, in England, the power of parliament is
omnipotent, and English cases on this subject must be considered
with reference thereto,**' the power of legislature in America is con-
trolled by constitutional provisions.*** An important distinction
exists between corporations clothed with powers of eminent domain

«*o Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629, reviewing
many cases; Burkam v. Railway Co., 122 Ind, 344, 23 N. E. 799; Hyland v.
Transfer Co. (Ky.) 11 S. W. 79. As to subsequent damages after condemna-
tion proceeding. Ohio & M. Ry. Co. v. Wachter, 123 lU. 440, 15 N. E. 279;
Eaton V. RaUroad, 51 N. H. 504; Wood, Nuis. § 764, note 2; Rex v. Poase, 4
Bam. & Adol. 30; Vaughan v. Taff Vale R. Co., 5 Hurl. & N. 679; London, B. t\:
S. C. Ry. Co. V. Truman, 11 App. Cas. 45; Powell v. Fall, 5 Q. B. Div. 397;
Sadler v. South Staffordshire & B. D. S. T. Co., 23 Q. B. Div. 17. An article
on the nuisances arising from the violation of the common-law rights of a
community by electric street railways. 14 Can. I^w T. 225.

2*1 Evans v. Railway Co., 86 Wis. 597, 57 N. W. 354, collecting cases.

2*2 Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct.
719; Id., 137 U. S. 568, 11 Sup. Ct. 185; New York El. R. Co. v. Fifth Nat.
Bank, 135 U. S. 432-442. 10 Sup. Ct. 743; Smith v. London & S. W. Ry. Co.
L. R. 6 C. P. 14; Village of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197.
Although horees were neoes.sarj' for the working of the tramways, tlie com-
pany were not justified by their statutory powers in using the stables so as
t ^ be a nuisance to their neighbors, and it was no sufficient defense to say
that they had taken all reasonable care to prevent it. Rapier v. London
Tramways Co. [18a3] 2 Ch. 588.

2*8 Reg. V. Metropolitan Board of Works, 3 Best & S. 710; New River Co.
v. Johnson, 2 El. & El. 435.

24* But an act authorizing an existhig nuisance is a mere license, and may
be revoked at pleasure, where no consideration is paid. Reading v. Com.,
51 Am. Dec. 534.

792 NUISANCE. [Ch. 11

and those which have no such right.*** The former may construct
and operate their authorized works, and are not liable if damages
ensue, if there be no negligence or malice; ^*' but they may not
take private property without the payment of compensation, ascer-
tained by a jury.2*'' Accordingly, legislative grants do not exempt
corporations for imposing a burden which amounts to the ^actual
taking of property for public purposes.***

Nuimnce Authorized by Common Law.

Prescription cannot legitimate a nuisance, properly speaking.**®
But, within the limits of actual user, and not of claim, prescription
may give rise to an easement.* "^^ A public nuisance cannot be legal-
ized by prescription, even so far as the right of a private individual
specially injured is concerned. "In such cases, prescription has no
application. Every day's continuance is a new offense, and it is no
justification that the party complaining came voluntarily within its

24 5Hauck v. Tidewater Pipe-Line Co.. 153 Pa. St 366, 26 Atl. 644. Cf.
McAndrews v. Collerd. 42 N. J. Law. 189.

246 Id. Cf. Booth V. RaUroad Co., 140 N. Y. 267, 35 N. B. 592.

2*T Parker v. Catholic Bishop, 146 111. 158, 34 N. B. 473.

248 Wood, Nuls. §§ 759. 760.

240 Dygert v. Schenck. 35 Am. Dec. 575; MUIs v. Hall. 24 Am. Dec. 160;
Queen v. Brewster, 8 U. 0. C. P. 208; post, p. 803, note 306.

ano Homer v. Stlllwell, 35 X. J. Law, 307; Bunten v. Chicago, R. I. & P.
Ry. Co., 50 Mo. App. 414; Mueller v. Fnien, 36 Minn. 273, 30 N. W. 886; Drew
V. Hirks (Cal.) 35 Pae. 503; lieckonfleld v. LouFdale, L. R. 5 C. P. 657. Bt
vide Rolle v. Whyte, L. R. 3 Q. B. 286. To obstruct the flow of water In a
natural water course, see Murgatroyd v. Robinson, 7 El. & Bl. 391. Or to car-
ry on a noisy trade, Sturges v. Bridgman, 11 Ch. Div. 852. To pollute water,
Wright V. Williams, 1 Mees. & W. 77; Crossley v. Lightowler, 2 App. Cas.
478. Acquiescence of a tenant for life does not affect remainder-men, Wallace
V. Fletcher, 10 Fost. (N. H.) 453. In an action for personal injuries received
by falling into a cellar way, due to a defective cover, evidence that the cellar
way had been maintained for 20 years without objection from the city au-
thorities tends to prove that it was built under permission from the city;
and therefore an instruction that it was a nuisance, per se, is erroneous.
.Tcrgensen v. Squire, 66 Hun, 633, 21 N. Y. Supp. 383, affirmed in 144 N. Y.
280, 39 N. E. 373. As maintaining a fever-breeding dam, see Mills v. Hall,
9 Wend. 315. As a city could not, in the absence of express legislative au-
thority, grant the right to erect and perpetually maintain awnings over the
sidewalks, no lapse of time will render the license to erect awnings irrevoca-
ble. City Council of Augusta v. Bamum, 93 Ga. 68, 19 S. E. 820.

Ch. 11] PARTIKS TO PROCEEDINGS AGAINST. 793

reach. Pure air and comfortable enjoyment of property are as
much rights belonging to it as the right of possession and occu-
pancy." *'^ The confusion in the cases, and the uncertainty in the-
ory as to what the "natural use of land" is, which allows one to use
his own without responsibility to his neighbor for consequent dam-
ag^e, is elsewhere discussed.^^'

PARTIES TO PROGEEBnraS AQAINST.

243. Subject to conventional variations in the normal

right to sue, the parties plaintiff in a civil proceed-
ing against a nuisance are in general determined by
property interests.

244. Whoever creates or merely maintains a nuisance,

after notice to abate, is a proper defendant in such
proceedings; but, as a joint tort feasor, only when
there is concert in action between the alleged
wrongdoers.

Parties Plaintiff.

The parties plaintiff in a civil proceeding against a nuisance arc
determined primarily by property interests. For example, the re-
versioner may sue for permanent depreciation of property, or set-
ting up an adverse claim of right; but ordinarily the tenant in pos-
session is the proper party plaintiff.^'* Several distinct owners or

291 Board of Health v. Lederer (N. J. Ch.) 29 Atl. 444 (a leading case);
State V. HoUnan, 104 N. C. 8G1, 10 S. E. 758; Reed v. City of Birmingham,
92 Ala. 339, 9 South. 161; Meiners v. Frederick Miller Brewing Co., 78 Wis.
364, 47 N. W. 430; Chicago & E. R. Co. v. Loeb (lU. Sup.) 59 Am. Rep. 341,
note (8 N. B. 460); Hargreaves v. KImberly, 53 Am. Rep. 130, note; Rung v.
Shoneberger, 26 Am. Dec. 05; People v. Cunningham, 1 Denio, 524; People
v. Maher, 141 N. Y. 330. 36 N. E. 396. And generally, see Wood, Nuls. § 18,
note 4.

26«Bowen v. Wendt, 103 Cal. 236. 37 Pac. 149; Cross v. Mayor of Morris-
town, 18 N. J. Eq. 305. Befouling percolating waters by passing through
a cemetery Is damnum absque injuria. City of Greencastle v. Hazelett, 23
Ind. 186. Contra, Clark v. Lawrence, 6 Jones, Eq. (N. C.) 83. Et vide
Clemens v. Speed, 93 Ky. 2S4, 19 S. W. 660.

«aa Lockett v. Ft. Worth & R. G. Ry. Co., 78 Tex. 211, 14 S. W. 562; Belr
y. Cooke, 37 Hun, 38; Jones v. Chappell, 20 Eq. Cas. 539; Mott v. School-

794 NUISANCE. [Ch. 11

tenants may join in a suit to restrain a nuisance which is common to
all and affects each in a similar way, but may not so join to restrain
that which does a distinct and special injury to the property of each.
Thus, annoyance from a lunatic asylum, though given acts do not
occur at the same time, nor to the same person, but continually, is
not a distinct, but a common, nuisance.* '^* Where, however, the ac-
tion is at law, owners of distinct interests, it has been insisted,
must bring separate actions for the same nuisance.*'^'* A private
actidn for a public nuisance can only be maintained by one who
is the owner, or has some legal interest, as lessee *^® or otherwise,
in the land which is affected by the nuisance. Therefore, one who
lived in his wife's house could not sue for annoyance to himself or
his family for corruption of the air by another.'*^ Bight of pos-
session is sufficient interest.^*^* A municipal corporation may be

bred, Id. 22; Simpson v. Savage, 1 C. B. (N. S.) 347; Mumford v. Oxford, W.
&, W. Ry. Co., 1 Hurl. & N. 34; MetropoUtan Ass'n v. Fetch, 5 C. B. (N. S.)
504,

2 0* Rawbotham v. Jones, 47 N. J. Eq. 337, 20 Atl. 731. Cf. Morris & E. R.
Co. V. Prudden. 20 N. J. Eq. 530; Fogg v. Nevada, C. O. Ry. Co., 20 Nev.
429, 23 Pac. 840; Reld v. Gifford, 16 Johns. Ch. 19; Peck v. Elder. 3 Sandf.
(N. Y.) 126; Seifled v. Hays, 81 Ky. 377; Murray v. Hay, 1 Barb. 59; Town
of Sullivan v. PhUllps, 110 Ind. 320, 11 N. E. 300; Grant v. Schmidt, 22
Minn. 1. Defendant cannot complain of the admission of Hfe tenants as
parties plaintiff with remainder-men In a suit to restrain a nuisance. Ralney
V. Herbert, 5 C. C. A. 183, 55 Fed. 446. Lessor and lessee necessary parties
In an action to enjoin. 0*Sulllvan v. New York El. R. Co. (Super. N. Y.) 7
N. Y. Supp. 51.

256 Snyder v. Cabell. 29 W. Va. 48, 1 S. E. 241; Hellams v. Switzer, 24
S. C. 39.

2 56 Cooper V. Randall, 59 111. 317. By tenant against landlord, see Kern
V. Myll, 94 Mich. 477, 54 N. W. 176; Angevlne v. Knox-Goodrich (Cal.) 31
Pac. 529; Case v. Minot, 158 Mass. 577, 33 N. E. 700.

257 Kavanagh v. Barber, 131 N. Y. 211, 30 N. E. 235, reversing 59 Hun,
60, 15 N. Y. Supp. 603. Cf. Ellis v. Kansas City, St. J. & C. B. R. Co., 63
Mo. 131; Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 13 Sup. Ct. 822.
Therefore a father should not join with him as plaintiff his minor children in
a suit for damages for the nuisance of collecting stagnant water, rendering
unhealthy plaintiff's house, and offending the sight and smell of himself and
children. Lockett v. Ft Worth & R. G. Ry. Co., 78 Tex. 211, 14 S. W. 564.

2 58 Hopkins v. Baltimore & P. R. Co., 6 Mackey, 311; Crommelin v. Coxe,
68 Am. Dec. 120. A mortgagor in possession after foreclosure, Lurssen v.
Lloyd, 76 Md. 360. 25 AtL 294.

Ch. 11] PARTIES TO PROCEEDINGS AGAINST. 795

authorized to proceed against a nuisance, such as interference with
water courses.^ ^* A wrongdoer is not entitled to relief from the
courts against a nuisance.^®® His consent to the wrong will pre-
vent him from afterwards securing judicial interference,**^ but
only so far as such consent extends.*'*

Parties Defendant,

The person primarily liable for a nuisance is he who creates it,
whether on his own land or not.*®'* He cannot escape liability for
its continuance by demising the premises whereon the nuisance is
located; *•* nor, on the other hand, is he liable for his grantee's

259 Newark Aqueduct Board v. City of Passaic, 45 N. J. Eq. 393, 8 Atl. 106.

2eo Topeka Water-Supply Co. v. City of Potwin, 43 Kan. 404, 23 Pac. 578.

261 Unas, an abutting owner who qonsents to the occupation of a street by
a railroad company cannot afterwards ask the court to enjoin the use of the
street or award him . damages. Burkam v. Ohio & M. Ry. Co., 122 Ind. 344,
23 N. E. 799. The fact that a person knows that a factory is being built,
and the purpose for which it is to be operated, and makes no objection
thereto, does not estop him to afterwards sue to abate it as a nuisance,
"because of the smoke arising therefrom, and to recover for damages caused
thereby, unless his conduct influenced the owner in building the factory.
Harley v. MerriU Brick Co., 83 Iowa, 73, 48 N. W. 1000. But see Whitney v.
Union Ry. Co., 71 Am. Dec. 715.

2«* A parol license permitting a city to discharge the sewage from a par-
ticular district on private property does not authorize the discharge of the
sewage from a much larger territory; and the licensor is entitled to an
injunction against such Increased discharge, and is not confined to a legal
action for damages. (1 N. Y. Supp. 456, modified.) New York Cent. & H.
R. R. Co. V. City of Rochester, 127 N. Y. 591, 28 N. E. 416.

2«3 16 Am. & Eng. Enc. Law, 979; Thompson v. Gibson, 7 Mees. & W. 456.
Thus the erector of an obstruction to a right of way is liable, although he is
one of several persons claiming the land over which the way is situated.
Connor v. Hall (Ga.) 15 S. E. 308. Et vide Williamson v. Tobey, 86 Cal. 497,
25 Pac. 65; Whitenack v. Philadephia & R. R. Co., 57 Fed. 901. So. a rail-
road company, for soot, smoke, and discomfort of running train, to adjoining
owners. LouisvHle & N. U. Co. v. Orr. 91 Ky. 109. 15 S. W. 8. The pur-
chaser of a railroad is not liable for damages caused by nuisance in its oiDera-
tion by vendor. Louisville & N. R. Co. v. Orr, 91 Ky. 109, 15 S. W. 8. The
defense of independent contractor does not avail unless the wrong arise from
the manner of doing the work, rather than from the work itself. Ante, p.
228; Skelton v. Fenton Electric Light & Power Co., 100 Mich. 87, 58 N. W.
609; Aldrich v. City of Minneapolis, 52 Minn. 164, 57 N. W. 221.

«e4 Ingwersen v. Rankin, 47 N. J. Law, 18. Compare Roswell v. Prior, 12

796 NUISANCE. [Ch. 11

subsequent conduct whereby the nuisance is created.*'* The bare
fact of ownership of real estate imposes no responsibility for a
nuisance on it.*®® Indeed, the occupier, and not the owner, is, in
general, liable for nuisance thereon.*®^ A fair summary of the
law on this point would seem to be that where the nuisance com-
plained of is caused by the physical condition of the premises, re-
sulting from acts of commission or omission while in the possession
of the owner, he is liable, but where the nuisance arises, not from
their physical condition, but from the mode of user, the occupier is
liable.*®* He who has created a nuisance on his own land being,
accordingly, liable for it, his grantee is not liable, when he was not
an actor in creating or actively maintaining it,*** until it is shown
that he failed, upon request, to remove it*"'® within a reasonable
time.*"'^ But such notice mav be waived.*^*

Mod. 635, with Ilyppon v. Bowles, Cro. Jac. 373; Plumer v. Harper, 14 Am.
Dec. 333; Fish v. Dodge, 47 Am. Dec. 254; Waggoner v. Jermalne, 45 Am.
Dec. 474. An owner who rents a house, knowing it to be used for prostitu-
tion, is Uable in damages to an adjoining owner. Marsan v. French, 48 Am.
Rep. 272.

26 5 Moore v. Langdon, 47 Am. Rep. 2C2.

2«8 Schmidt v. Cook (Com. PI. N. Y.) 23 N. Y. Supp. 799; Dalay v. Savage,
145 Mass. 38, 12 N. E. 841; Fordyce v. Russell, 59 Ark. 312, 27 S. W. 82; lAifkin
V. Zane, 157 Mass. 117, 31 N. E. 757; Ahern v. Steele, 115 N. Y. 203, 22 N. E.
193; McCarthy v. York Co. Sav. Bank, 74 Me. 315. Compare Rex v. Pedly,
1 Adol. & E. 822-827, with Gandy v. Jubber, 9 Best & S. 15. The English
case of this note will be found reviewed in Rex v. Pedly, 88 Law T. 149.
Ante, p. 22r>, "Landlord and Tenant."

20T Ante, p. 225, "Landlord and Tenant." In Lufkin v. Zane, 34 Am. St
Uep. 267, will be found citations on liability of grantee or lessee of premises
for nuisance on the same.

268 Clerk & L. Torts, 321-327, collecting cases; Joyce v. Martin, 15 R. I.
558, 10 Atl. 620; Owings v. Jones, 9 Md. 108; Rich v. Basterfield, 4 C. Bv
783; ante, p. 225, "Landlord and Tenant." And see Moore v. Browne, 3
Dyer, 319, compared with Irvine v. Wood, 51 N. Y. 2^, by Dallas, J., in
Philadelphia & R. R. Co. v. Smith, 12 C. C. A. 384, 64 Fed. 679-683.

260 Whitenack v. Philadelphia & R. R. Co., 57 Fed. 901. There is no pre-
sumption that a grantee knows that a dam erected by his grantor on the land
was erected without the consent of others affected thereby.

270 Philadelphia & R. R. Co. v. Smith. 12 C. C. A. 34, 64 Fed. 679 (in

2T1 Rychlicki V. City of St I^ouis, 115 Mo. 662, 22 S. W. 90a
272 As by answer, Bartlett v. Siman, 24 Minn. 448.

Ch. 11] PARTIES TO PROCEEDINGS AGAINST. 797

All persons who join, aid, or assist in creating and maintaining
a nuisance may be jointly and severally liable.*^* But the liability
of joint contributors is not necessarily that of joint tort feasors.
If the persons who maintain a nuisance act independently, and
not in concert with others, each is liable for damages which result
from his individual conduct only. And the fact that it may be
difficult to actually measure the damage caused by the wrongful
act of each contributor to the aggregate result does not affect the
rule, or make any one liable for the acts of the others.^"'* Each

this case Dallas, J., discusses, inter alia, the following New Jersey cases
not in accord with the general rule, viz. Pierson v. Glean, 14 N. J.
Law, 36; Beavers v. Wimmer, 25 N. J. Law, 97; Morris Canal & Bank-
ing Co. V. Ryerson, 27 N. J. Law, 457). Steinlte v. Bentley, G Ind. App. 663,
,^1 N. E. 97: Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. 441:
Rouse V. Chicago & E. I. R. Co., 42 Hi. App. 421; Eastman v. Amoskeag
ManuTg Co., 82 Am. Dec. 201; Plumer v. Harper, 3 N. H. 88; Johnson v.
Lewis, 13 Conn. 303; Curtice v. Thompson, 19 N. H. 471; Crommelin v.
Coxe, 68 Am. Dec. 120; Pillsbury v. Moore, 69 Am. Dec. 91; Nichols v.
Boston, 93 Am. Dec. 132; Noyes v. Stillman, 24 Conn. 15; Conhocton Stone
Road v. Buffalo, N. Y. & E. R. Co,, 51 N. Y. 573; Ahem v. Steele, 115 N.
Y. 203. 22 N. E. 193; Grlsby v. Clear Lake Water Co., 40 Cal. 396. Tenant
for years, see City of McDonough v. Oilman, 80 Am. Dec. 72; Slight v.
Gutzlaff, 17 Am. Rep. 470; Castle v. Smith (Cal.) 36 Pac. 859 (notwithstand-
ing Code, § 3483); Penruddock's Case, 5 Coke, 101a; Jones v. Williams, 11
Mees. & W. 176; Pol. Torts, 350-i35L Mere failure to remove or repair
jetties in a river, whereby plaintiff's crops were damaged, does not make
receivers of a railroad liable. They are made liable only by some positive
act adopting them. Fordyce v. Russell, 59 Ark. 312, 27 S. W. 82.

27 8 Simmons v. Everson. 124 N. Y. 319, 26 N. E. 911; Bigelow, Lead. Cas.
475, 476. A powder magazine, Commlnge v. Stevenson, 76 Tex. 642, 13 S. W.
556. Et vide Irvln v. Wood, 4 Robt. (N. Y.) 138; Anderson v. Dickie, 26 How.
Prac. 105; Rogers v. Stewart, 5 Vt. 215; Buddington v. Shearer, 20 Pick.
477; Grogan v. Broadway Foundry Co., 87 Mo. 321. For continuing a
nuisance the lessor, assignees of lease, lessees, and sublessees are Jointly
liable. Rogers v. Stewart, 20 Am. Dec. 290.

274 Loughran v. City of Des Moines, 72 Iowa, :iS2, 34 N. W. 172; Ferguson
V. Firmenich Manuf*g Co., 77 Iowa, 576, 42 N. W. 448; Sloggy v. Dll worth.
38 Minn. 179, 36 N. W. 451; Chipman v. Palmer, 33 Am. Rep. 5G6; Sellick
V. Hall, 47 Conn. 260; Martinowsky v. City of Hannibal, 35 Mo. App. 70;
Evans V. Wilmington & W. R. Co., 96 N. C. 45, 1 S. E. 529; Suth. Dam.
257; 1 Add. Torts, 374; Gould, Waters, §§ 222-398; Wood, Nuls. § 831;

798 KUisANCE. [Ch. U

must be definitely connected as the proximate,*^*^ but not as the
sole,*^* cause of the wrong. Municipal corporations, subject to statu-
tory exemptions, may be held liable for failure to exercise reason-
able care and diligence in not abating a nuisance,^^' or for wrong-
ful exercise of power to abate; *^* and they are generally liable for
the maintenance of a nuisance.^^®

Chlpman v. Palmer, 77 N. Y. 51. Cf. Simmons v. Everson, 124 N. Y. 319,
26 N. B. 911; Harley v. MerriU Brick Co., 83 Iowa, 73, 48 N. W. 1000;
Lull V. Improvement Co., 19 Wis. 112. Cf. Thorpe v. Brumfltt, 8 Ch. App.
650; Blair v. Deakin, 57 Law T. 522, 52 J. P. 327; Nixon v. Tynemouth
Union Rural Sanitary Authority, 52 J. P. 504; ante, p. 209, "Joint Tort
Feasors."

27 5 Russell V. Bancroft, 79 Tex. 377, 15 S. W. 282. Et vide Atlanta & F.
R. Co. V. Kimberly, 87 Ga. 161, 13 S. E. 277; Mirkll v. Morgan, 134 Pa, St
344, 19 Atl. 628.

276 City of Hannibal v. Richards, 35 Mo. App. 15. Causing and permitting
are the same thing, Hochstrasser y. Martin, 62 Hun, 165, 16 N. Y. Supp. 558.

277 In Taylor v. Mayor, etc, of City of Cumberland, 64 Md. 68, 20 Atl. 1027,
a municipal corporation was held liable for coasting on streets. In Lincoln
v. City of Boston, 148 Mass. 578, 20 N. E. 329, the city was held not liable
for injury occasioned by a running away of a horse frightened by licensed
firing of cannon.

27 8 City of Orlando v. Pragg, 31 Fla. Ill, 12 South. 368.

278 As for discharging sewage on defendant's premises, see Stoddard v.
Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030; Bacon v. City of Bos-
ton, 154 Mass. 100, 28 N. E. 9. Et ^vide City of Sherman v. Langham (Tex.
Sup.) 13 S. W. 1042, followed in City of Hillsboro v. Ivey, 1 Tex. Civ. App. 653,
20 S. W. 1012; Miles v. City of Worcester, 154 Mass. 511, 28 N. E. 676; Att-
wood V. City of Bangor, 83 Me. 582, 22 Atl. 466; Bish. Noncont. Law, 754;
Danaher v. City of Brooklyn, 119 N. Y. 241, 23 N. E. 745; Mehrhof Bros.
Brick Manufg Co. v. Delaware, L. & W. R. Co., 51 N. J. Law, 66, 16 Atl. 12;
Taylor v. Mayor, etc., 64 Md. 73, 20 Atl. 1027; Lostutter v. City of Aurora, 126
Ind. 436, 26 N. E. 184; Mootry v. Town of Danbury, 45 Conn. 550; Hubbell
V. City of Viroqua, 67 Wis. 343, 30 N. W. 847. If a person has created a
nuisance in a public street, and a city is in consequence thereof obliged to
pay damages to a traveler on the street, the fact that the city is in fault in
not removing the nuisance does not make it in pari delicto with the creator
of the nuisance and prevent recovery against him. City of Lowell v. Glidden,

^159 Mass. 317, 34 N. E. 459.

Cb. 11] REMEDIES. 799

HEMEDIES.

246. Private remedies for a nuisance^ not merely statu-
tory**^ may be —

(1) Abatement by act of parties, or by judicial proceed-

(2) Injunction, and other equitable remedies; or

(3) Action for damages.^

Abatement by Act of Party.

The abatement of a nuisance by private persons is one of the
oldest of recognized remedies for torts. It is, in general, the re-
moval of the nuisance.*®* Where a party can maintain an action
for a nuisance, whether public or private, he may enter and abate
it,*'* without breach of the peace,*''^ unless the nuisance consists of
unlawful and immoral conduct,*®'

280 Ag to public remedies, see ante, p. 782, note 206, "Public Nuisances."
Public remedies are not exclusive ordinarily of a private remedy for same
wrong. Hart v. Board of Chosen Freeholders (N. J. Sup.) 29 Atl. 490.

s>i The statutory and common-law remedy for a nuisance is naturally
cumulative. Renwick v. Morris, 7 Hill (N. Y.) 575. Ante, p. M8, "Statu-
tory Remedies." Where a summary method given a town for the abatement
of a nuisance cc»fers no right not possessed at common law, it does not pre-
clude a resort to the courts. American Furniture Ck). v. Town of Batesville
(Ind. Sup.) 38 N. E. 408.

>•> As to choice of remedies, see People v. Detroit White Lead Works, 82
Mich. 471, 40 N. W. 735; aty of Grand Rapids v. Weiden, 97 Mich. 82, 56 N.
W. 233.

28S 3 Bl. Comm. 5. . "The removal, prostration, or destruction of that which
causes a nuisance, whether by breaking or pulling down, or otherwise remov-
ing, disintegrating, or effacing it. The remedy which the law allows a party
injured by a nuisance of destroying or removing it by his own act, so as he
commits no riot in doing it, nor occasions (if the case is private nuisance) any
damage beyond what the removal of the inconvenience necessarily requires."
Black, Law Diet. p. 5.

284Baten*s Case, 9 Coke, 53b; Griffith v. McCullum, 46 Barb. 501; Amos-
keag Manurg Co. v. Goodale, 46 N. H. 53; Burd. Lead. Cas. 313, collecting

288 Stiles- V. Laird, 63 Am. Dec. 110; Mohr v. Gault, 78 Am. Dec. 087.
28e Gray v. Ayei-s, 32 Am. Dec. 107.

800 NUISANCE. [Ch. 11

The right of abatement by the owner is clearly recognized, as to
private nuisances. .Thus, trees whose branches and roots extend
over and into the land of another are nuisances, to the extent that
the branches overhang and the roots penetrate the land of another;
and the person whose land is injured may cut off the roots and
branches only so far as they so penetrate and overhang his land, but
he may not cut down the trees.^®^ Also, when a public nuisance
obstructs the individual right of a private person, he has been al-
lowed to remove it, to enable him to enjoy that right, without being
called to answer for so doing." ®^ Thus, the right of enjoyment to
security of person may justify the killing of a dog at large, so fero-
cious that he will, of his own disposition, bite persons in the street.***
Indeed, it is said that a public nuisance may be abated by any per-
son, whether he has been injured by it or not.*®° ^^f the nuisance
is in the nature of a trespass, and cannot be abated without enter-
ing on another's land, it does not appear that the wrongdoer is en-
titled to notice. If, however, the nuisance is on the wrongdoer's
own land, he ought to be first warned, and required to abate it him-

cases; Rhodes v. Whitehead, 84 Am. Dec. 631. But the owners of adjoining
tracts of land are tenants in common of trees growing on the boundary line
between the tracts. Musch v. Burkhart, 83 Iowa, 301, 48 N. W. 1025.

287 Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Hickey v. Railroad Co.,
96 Mich. 498, 55 N. W. 089; Norris v. Baker, 1 RoUe, Abr. 393; Earl of Lons-
dale V. Nelson, 2 Baru. & C. 311 ; Hickey v. Michigan Cent. Ry. Co. (Mich.)
21 I^wy. Rep. Ann. 729, and note collecting cases (55 N. W. 989); Bucking-
ham V. Elliot, 52 Am. Rep. 188. Damages after refusal to abate, see article
in 50 Alb. Law J. 229. So interference with water course may be abated.
Schaefer v. Marthaler, 34 Minn. 487, 26 N. W. 726. So to tear down build-
ings wrongfully built on one's own land after notice (Burling v. Read, 11 Q.
B. 904. If there are people in the house this may be a tresjiass. Jones v.
Jones, 1 Hurl. & C. 1) within a reasonable time (Davies v. Williams, 16 Q.
B. 546).

2S8 Brown V. Perkins, 12 Gray, 89; Baten's Case, 9 Coke, 53b; Rex v. Rose-
well, 2 Salk. 459, 3 Bl. Comm. 5; Crosland v. Pottsville Borough, 126 Pa. St.
511, 18 Atl. 15.

280 Dunlap v. Snyder, 17 Barb. 501. Et vide Brown v. Carpenter, 26 Vt.
638; Stump v. McNairy, 5 Humph. 363; Oliver v. Loftin, 4 Ala. 240. But see
Peckham v. Henderson, 27 Barb. 207.

2 00 Gates v. Bllncoe, 26 Am. Dec. 440; Wetmore v. Tracy, 28 Am. Dec. 525.

Ch. 11] BEMEDIE?-. • 801

self. After notice and refasal, entry on the land to abate the nui-
sance may be justified; but it is a hazaMous course, at best, for a
man to take the law into his own hands, and in modem times it
can seldom, if ever, be advisable." '*^ However, if the actions of
the occupant are in themselves unlawful, and the nuisance is imme-
diately dangerous to life or health, the person injured may enter on
the land of such occupant to abate the nuisance without previous
request or notice to the occupant to remove it. Such notice or re-
quest to the occupant is necessary if, when he acquired possession
of the land, the nuisance already existed upon it, and he simply
neglected to remove it.*®* In case of the abatement of a public or
private nuisance, however, a very pressing exigency is required to
justify sunmiary action of this character; particularly, in the case
of a public nuisance.*®* The person abating is liable if in removing
the nuisance he does more damage than is necessary, or converts
the materials composing the nuisance.*®^ If it should be proved
that the supposed wrong abated was not in fact a nuisance at the
time of abatement,*** liability attaches.*®* And in this respect a

»»i Webb, Pol. TwlB, 513, 514; People v. Board of Health of City of Yonkers,
140 N. T. 1, 35 N. E. 320.

292 Jones T. Williams, 11 Meea & W. 176. Removal of filth: Grigsby v.
dear Lake Waterworks Co., 40 Cal. 396; West v. Railway, 8 Bush, 408.
Generally, as to notice, see United States Illuminating Co. y. Grant, 55 Hun,
222, 7 N. Y. Supp. 788; Dunsbach v. Holllster, 49 Hun, 352, 2 N. Y. Supp. M;
McGowan v. Missouri Pac. Ry. Co., 23 Mo. App. 203; Groff v. Ankenbraudt
19 m. App. 148; Harvey v. Dewoody, 18 Ark. 252; Sweet v. Sprague, 55 Me.
190; Haggerty v. Thomson, 45 Hun, 398. Statutory requirement of notice,
see Verder v. Ellsworth, 59 Vt. 354, 10 Ati. 89.

2»a Ring. Torts, 101; Whetmore v. Tmcy, 14 Wend. 252; Davies v. Williams,
16 Q. B. 540; Hicks v. Dorn, 42 N. Y. 47.

2»4 Larson v. Furlong. 50 Wis. 681. 8 N. W. 1; Id., 63 Wis. 323, 23 N. W.
581.

295 Remoyal of a dock, a public nuisance, by ripanan owner, Greenslade
V. Halliday, 6 Bing. 379. But a wrongdoer is not entitled to consideration
as to the manner of abatement. Roberts v. Rose, L. R. 1 Exch. 82-89; Gates
V. Blincoe, 26 Am. Dec. 440; Graves v. Shattuck, 69 Am. Dec. 536.

2»» An owner of land may protect it by embankments from overflow by sur-
face water, ajid recover damages of an adjoining owner who cuts the em-
bankments for the purpose of allowing the water to flow off his own land.
Jean v. PenosylvaBla Co., 9 Ind. App. 56, 36 N. E. 159, followed. Jacks v.
LoUis, 10 Ind. App. 700, 37 N. E. 728. '

LAW OF TORTS— 61

802 NUISANCE. [Ch. 11

city is subject to the same perils and liability as an individual.^ "^^
Liability may attach for excessive abatement.^'®

Abatement by Action,

A nuisance may be abated by an action on principles similar to
that which controls the issuance of an injunction,'** and by pro-
ceedings at law.'®* A nuisance may be abated in the same action
in which damages are recovered,'*^ but one maintaining a public
nuisance is not entitled to a jury trial in summary proceedings to
abate.^®^ A public nuisance may be abated by a suit of the people,
by their proper officers.'*' In order that a nuisance may be abated
by private action, special,'** though not necessarily pecuniary, dam-

20 7 Cole V. Kegler, 64 Iowa, 59, 19 N. W. 843, collecting cases at page 62.
M Iowa, and pa^'e 843, 19 N. W. Genemlly, as to abatement, see Griffith v.
McCullum, 40 Barb. 561; Bmwn v. De GroflP. 50 N. J. I^w, 409. 14 AtL 219;
Fields V. Stokley, 99 Pa. St. 306; Bowden v. Lewis, 13 R. I. 189; Roberts v.
Rose, 4 Iluii. & C. 103; Claris v. Lake St. Clair & N. U. R- Ice Co., 24 Mich.
508; Gray v. Ayres, 7 Dana, 375; School Dist. v. Neil, 36 Kan. 617, 14 Pac.
253; City of McGregor v. Boyle, 34 Iowa, 2(J8.

208 narrower v. Ritson, 37 Barb. 301; Brightman v. Inhabitants of Bristol,
65 Me. 443; Ely v. SupervUors, 36 N. Y. 297; Barp v. Lee, 71 111. 193. If a
building is wrongfully used, the use should be stopped, not the building de-
molisliod or removetl. Barclay v. Com., (U Am. Dec. 715; Gray v. Ayres. 32
Am. Dec. 107. Et vide Brightman v. Inhabitants of Bristol. 20 Am. Rep.
711. Abatement is not destruction, unless destruction be absolutely neces-
sjiry. Morrison v. Marquardt, 92 Am. D3C. 444.

20 0 As to abate a breakwater, see Nicholson v. Getchell. 96 Cal. 394, 31 Pac.
265. Action by lessee, Hadon v. Brown, 31 Pa. St. 5(?; obstruction to a pri-
vate way. Van Borgon v. Van Bergen, 8 Am. Dec. 511; Connor v. Hail, 89
Ga. 257, 15 S. E. 308. Et vide Harley v. Merrill Brick Co., 83 Iowa, 73, 4H
N. W. 1000. Cf. Dumesnil v. Dupont, 68 Am. Dec. 750 (where a chancellor
declined to decre<» abatement of a powder house as a nuisance). Equity will
abato as well as prevent creation of nuisance, Earl v. De Hart, 72 Am.
Dec. 395.

a 00 Barclay v. Com., 64 Am. Dec. 715; Tate v. Railroad Co., 71 Am. Dec.
309. Et vide I»arsons v. Tuolumne County Water Co., 63 Am. Dec. 76.

301 Drink water v. Sauble, 46 Kan. 170, 26 Pac. 433.

302 Hart V. Mayor of Albany, 24 Am. Dec. 165.

30 3 Township of Hutchinson v. Fllk, 44 Minn. 536, 47 N. W. 255; Barclay v.
Com., 25 Pa. St. 503; City of Orhindo v. Pragg, 31 Fla. Ill, 12 South. 368;
City of Frc*sno v. Fresno Canal & Irr. Co., 98 Cal. 179, 32 Pac. 943.

80* To maintain a private action toabate a nuisance for obstructing street,

Ch. 11] REMEDIES. 803

ages, must be shown.*®'^ Prescription is no defense against a pri-
Tate action to abate a public nuisance.'"'

Equitahk Retnediea.

A court of equity may interfere, on behalf of one complaining of
a nuisance, to prevent threatened '®^ injury, to abate existing nui-
sances,^"® or otherwise to effect justice.'®* It exercises this inherent
jurisdiction with great caution.'^® It is not sufficient, to procure
equitable interference, to show that an act complained of as a nui-
sance is illegal, ^^f an act be illegal, I am not to grant an injunction
to restrain an illegal act merely because it is illegal. I could not
give an injunction to restrain ^ man from smuggling, which is an
illegal act"'^^ Equity will not, except for urgent and special rea-

an abutting owner mnst show special damage. Hogan v. Central Pac. R. Co.,
71 Gal. 83, 11 Pac. 876.

so 6 Building a house so as to prevent access of abutting ow^ner to public
highway may be abated by* action, without proof of special pecuniary dam-
ages. Hargro v. Hodgdon, 89 Cal. 623, 26 Pac. HOG; Porth v. Manhattan
Ry. Co. (Super. N. Y.) 11 N. Y. Supp. 633; Hogan v. Central Pac. R. Co., 71
Cal. 83, 11 Pac 870; Meiners v. Frederick MiUer Brewing Co., 78 Wis. 364,
47 N. W. 430.

80 « Applied to a brewery, Meinei*s v. Frederick Miller Brewing Co., 78 Wis.
364, 47 N. W. 430. Cf. City of New Castle v. Raney, 130 Pa. St. 546, 18 Atl.
1006.

•07 Ex parte Martin, 58 Am. Dec. 321; Wolcott v. Mclick, 66 Am. Dec. 790.
See cases coUected in Ryan v. Copes, 73 Am. Dec. 106-116.

»o« As to require remedy of evils complained of (flour mill) by scientific and
skillful appliances. Green v. Lake, 28 Am. Rep. 378. Quaere, as to smoke
consumers.

300 As to abolition of equity Jurisdiction by statute, sec 1 Pom. Eq. .Tur.
fi 281. Rule in New Hampshire, Id. §§ 307, 308; in Mas-^achusetts, Id. § 310; in
Maine, Id. S 331.

»io Ex parte Martin, 58 Am. Dec. 321; Wolcott v. Melick, 66 Am. Dec. 71M).

311 Vice Chancellor Kindersley, in Soltau v. De Held, 2 Sim. (N. S.) iavi.j4.
Therefore a public nuisance may not always be restrained by a private action.
Recovery of damages for a permanent injury to property does not necessarily
entitle to an injunction or order to abate. Downing v. Citj^ of Oskaloosa, 86
Iowa, 352, 53 N. W. 256. Although the unauthorized occupation of a public
street by a railway track may be regarded as a nuisance per so, which will
be enjoined, an injunction against it will not be granted at the suit of a pri-
vate person or coi-poration, unless plaintiff makes out a case of special damage.
Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co., 137 Pa. St. 533. 20 Atl. 570.

i)04 NUISANCE. [Ch. II

sons, enjoin an indictable public nuisance.'^* Where there has been
failure to exercise reasonable diligence,*^* or acquiescence operating
as estoppel, the plaintiff *^* will be left to its remedy at law. Nor
will a court of equity interfere where there is conflicting evidence.
A chancellor will not attempt to usurp the functions of a jury, and
pass upon disputed questions of fact.^^* Accordingly, if the damages
complained of are remote and speculative,'^^ if there be a dispute
as to whether a nuisance exists,'^^ or if it is doubtful whether the ap-

«i2 Inhabitants of Township of Raritan v Port Reading R. Co., 40 N. J. Eq.
11, 23 Atl. 127. Cf. Henry v. Trustees, 48 Ohio St. 671, 30 N. B. 1122. Et vide
Forth V. Manhattan Ry. Co. (Super. N. Y.) 11 N. Y. Supp. G33. Court of equity
will not enjoin an act whieli would otherwise be lawful, but which is made
unlawful by an ordinance or by-law of a city or town, unless the act is shown
to be a nuisance per se. Warren v. Cavanaugh, 33 Mo. App. 102; BurweU v.
Commissioners, 93 N. C. 73; Babcook v. New Jersey Stock Yards Co., 20 N. J.
Eq. 200. The question of nuisance or no nuisance, where the evidence Is con-
flicting and a doubt exists, must be first tried by a Jury. If the proceeding
was by Indictment, and the jury doubted whether it was a nuisance or not,
they would be bound to acquit; and the same rule applies to a court of chan-
cery. Thus, an Injunction will he refused unless plaintiff's disputed pre-
scriptive light has been tried at law. Ingi*aham v. DunneU, 5 Mete. (Mass.)
118; Dana v. Valentine, 5 Mete. (Mass.) 8; St Helen's Smelting Co. v. Tip-
ping, 11 H. L. Cas. 642; Flight v. Thomas, 10 Adol. & B. 590; Bolivar
Manuf'g Co. v. Neponset Manufg Co.; 16 Pick. 2il; Bliss v. Hall. 5 Scott, 500;
Goldsmld v. Tumbridge Imp. Com'rs, 1 Ch. App. 349; Campbell v. Seaman,
63 N. Y. ms; Mississippi & M. R. Co. v. Ward, 2 Black (U. S.) 485-495; Parker
V. Woollen Co., Id. 545-552; Irwin v. Dixlon, 9 How. 10-28; Rhodes v. Dun-
bar, 57 Pa. St. 274; Earl of Ripon v. Hobnrt, 1 Coop, t Brough. .333; Amelung
V. Seekamp, 9 Gill. & J. 468; Attorney General v. Hunter, 1 Der. Eq. 12;
Swaine v. Great Xorthern R. Co., 33 Law J. Ch. 399; Hart v. Mayor, etc., of
Albany, 3 Paige, 213.

818 Clifton Iron Co. v. Dye, 87 Ala. 408, 6 South. 192; Wood, Nuls. § 804;
Goodall V. Crofton, 31 Am. Rep. 535; lOlUson v. Commissioners, 75 Am. Dec.
430; St. .Tames Church v. Arrington, 76 Am. Dec. 332.

81* 2 Pom. Eq. Jur. § 817; Wood, Nuis. § 8(H5.

815 But see State v. Mayor, etc., of Mobile. 30 Am. Dec. 564; Dumesnll v.
Dupont, 68 Am. Dec. 750.

sie As to damage from erection of bay window, interfering with view of a
store, Hay v. Weber, 79 Wis. 587, 48 N. W. 859.

817 Private drain from well in street, Woml v. McGrath, 150 Pa, St. 451,
24 Atl. 082; powder magazine. Born v. Loflln & R. Powder Co., 84 Ga. 217,
30 S. E. 738; saloon interfering with dentist, Barfield v. Putzel, 92 Ga. 442,
17 S. 10. 616. Generally, see Wolcott v. Mellck, 66 Am. De<\ 790; Dumesnil
V. Dupont, 68 Am. Dec. 750.

Ch. 11] HEMEDIES. 805

prehended nnisance may arise,* ^* or from what som'ce damage com-
plained of has arisen, no relief will be granted.*** Nor will equity in-
terfere where damages are an adequate remedy. Mere injury to prop-
erty, as by de{»*eciation in valoe, entitles to damages only; but an of-
fensive business, when it reaches the point of discomfort, and becomes
injurious to health, calls forth the extraordinary power of a court of
chancery to destroy it.^^® But if the injured person has no adequate
remedy at law, as where the injury would otherwise be irreparable to
individuals, or great public injury ensue,*** or where a multiplicity

81 « Pollution of water, Newaik Aqueduct Board v. City of Passaic, 45 N.
J. Eq. 393, 18 Atl. 106. affirmed 46 N. J. Eq. 552, 20 Atl. 54, and 22 Atl. 55;
Depienig v. Mat tern (Sup.) 10 N. Y. Supp. 620; a pleasure garden, Piingst
V. Senn, ^ Ky. 556, 23 S. W. 358; power house, PoweU v. Macon & I. S.
R. Co., 92 Ga. 209, 17 S. B. 1027; a privy, Iliff v. School Directors, 45 111.
App. 419; a cemetery, Dunn v. City of Austin (Tex. Sup.) 11 S. W. 1125. Cf.
Clark V. Lawrence, 78 Am. Dec. 241. Et vide Ellison v. Commissioners, 75
Am. Dec. -430; Ross v. Butler, 97 Am. Dec. (>54.

si> Rouse V. Martin, 75 Ala. 510, 51 Am. Rep. 463 (a leading case, citing
many authorities). Plaintiff must show whether the water filling his cellar
came from defendant's well, complained of, or from springs. Mirkil v. Mor-
gan, 134 Pa. St. 144, 19 Atl. 628. And, generally, see Wood v. McGrath,
150 Pa. St 451, 24 Atl. 682; Canton Cotton Warehouse Co. v. Potts, 69 Miss.
31, 10 South. 448; PoweU v. Bentley & Genvig Furniture Co., 34 W. Va.
804, 12 S. E. 1085.

sao Ballentine v. Webb, 84 Mich. 38, 47 N. W. 485 (injunction for main-
taining a slaughterhouse refused). People v. Detroit White Lead Works, 82
Mich. 471, 46 N. W. 735, distinguished. Cleveland v. Citizens' Gas Light Co.,
20 N. J. Eq. 205, considered. A slaughterhouse, before pronounced a nui-
sance at law, Minke y. Hofeman, 29 Am. Rep. 63; machinery Jarring and
shaking plaintiff's house, so as to render it unsafe for habitation, Dittman v.
Repp, 33 Am. Rep. 325; Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc.
Rep. 374, 27 N. Y. Supp. 907. Et vide Evans v. FeitlUzlng Co., 160 Pa. St. 200,
28 All. 702. Special injury not sufficient, HiU v. Mayor, etc., of City of New
York (Sup.) 15 N. Y. Supp. 393. A creamery company will be enjoined from
causing its waste matter to flow into another's pasture so as to injure the pas-
ture and cattle therein. Price v. Oakfield Highland Creamery Co., 87 Wis.
536, 58 N. W. 1039. Where a saloon keeper causes a piano to be played in
his saloon each night from 7 o'clock till 10, and sometimes till 11, o'clock, to
the music of which dancirg, accompanied by loud noises, is indulged in, the
effect of which is to prevent the occupant of an adjoining dwelling from
sleeping, a preliminary injunction will, at the suit of such occupant, be
granted, restraining the use of the piano after 9 p. m. Feeuey y. Bartoldo
iN. J. Ch.) 30 Atl. 1101.

321 State V. Mayor, etc., of Mobile, 30 Am. Dec. 564.

800 NUISAxNCK. [Ch. 11

of suits is liable to be occasioned by its repetition or continuance,
the court of chancery will assume jurisdiction.'** By irreparable}
injury is not meant such injury as is beyond the possibility of repair,
or beyond compensation in damage, nor necessarily great injury or
great damage, but that species of injury, whether great or small,
that ought not to be submitted to, on the one hand, or inflicted on the
other, and which, because it is so large on the one hand, or so small
on the other, is of such constant and frequent occurrence that no fair
or reasonable redress can be had therefor in a court of law.*** Thus,
if the stench from a fertilizing factory in a farming community de-
creases the value of a person's house, and renders it almost uninhabit-
able, an injunction will issue.*** On the other hand, the fact that
the owners of a building have temporarily burned therein a quality
of coal that produced dense smoke, to the injury of the neighbors,
does not justify relief by injunction, since the remedy at law is

»22 Board of Health v. New York H. M. Co., 47 N. J. Eq. 1; Proprietors of
Maine Wharf v. Proi)rietors of Custom House Wharf, 85 Me. 175, 27 Atl. 03.

3 20 Wood, Nuis. § 778, citing, inter alia, Clowes v. Staffordshire Potteries
Waterworks Co., 8 Ch. App. 125; Wilts & B. C. Nav. Co. v. Swindon Water-
works Co., 9 Ch. App. 451: Webb v. Portland Manuf'g Co., 3 Sumn. 189,
Fed. Cas. No. 17,322; Babcoek v. New Jersey Stock Yard Co., 20 N. J. Eq. 296;
Pol. Torts, 523. Et vide Rhodes v. Dunbar, 57 Pa. St. 274 (opinion of Reed,
J., at pages 275-285); Mirkil v. Morgan, 134 Pa. St. 144, 19 Atl. 628; Ditt-
man v. Repp, 50 Md. 51C; Topeka Water Supply Co. v. City of Potwin, 43
Kan. 414. 2;i Pac. 578; Pflngst v. Senn, 94 Ky. 556, 23 S. W. 358; Powell
V. Macon & I. S. R. Co., 92 Ga, 209, 17 S. E. 1027; Talbott v. King, 32 W. Va.
6, 9 S. E. 48; Van Wegenen v. Cooney, 45 N. J. Eq. 24, 16 Atl. 689. W^hen
evils complained of can be remedied, an injunction restraining defendant
from operating a brass foundry will be modified. McMenomy v. Baud, 87
Cal. 134, 20 Pac. 795. As to when an Injunction will be refused, see Rosser
V. Ilnndolpli, 31 Am. Dec. 712 (damage not in-eparable) ; Bigelow v. Hartford
Bridge Co., 36 Am. Dec. 502 (no special damage); Hinchman v. Paterson
Horse R. Co., 86 Am. Dec. 252 (Id.); State v. Crawford, 42 Am. Rep. 182
(Id.; a saloon declared by statute to be a nuisance); Burwell v. Vance Co.
ComVs, 53 Am. Rep. 454 (Id.; a jail). An action for damages on account of
the pollution of a stream running through plaintiff's farm is not a condition
precedent to enjoining construction of sewers causing the pollution. Village
of Dwight V. Hayes (111. Sup.) 37 N. B. 218. See Indianapolis Water Co. v.
American Strawboard Co., 53 Fed. 970, affirmed 57 Fed. 1000.

324 Evans v. Reading Chemical Fertilizing Co., 160 Pa. St. 209, 28 Atl. 702.
And see Flelschner v. Citizens* Real-Estate & Inv. Co., 25 Or. 119, 35 Pac.
174; City of Grand Rapids v. Welden, 97 >rich. 82, 56 N. W. 233.

Ch. 11] REMEDIES. ^>07

ample.'** The destrnction of an easement, existing or threatened,
will e8i)ecially be restrained.*'* When the existence of a nuisance
has been established at law, equity will issue an injunction, as a mat-
ter of course, when the nuisance is of a constantly occurring char-
acter, and especially if damages recovered are merely nominal, and
therefore inadequate to prevent repetition.*'^

The injunction should be confined in its application to tlie specific
injury.*" It may be temporary, as to restrain an alleged continuing
nuisance,*'* or mandatory,*** interlocutory,**^ or final. Indeed, the
court may retain the cause, and decree full and final relief, including
damages or an abatement of whatever caused a nuisance.***

326 Nelson v. Mmigan, 151 111. 462, 38 N. E. 239.

326 Pom. Eq. Jur. $§ 350, 351. As to restraining obstruction of street. City of
Demopolis v. Webb, 87 Ala, 659, 6 South. 408; Town of Burlington v.
Schwarzman, 52 Conn. 181; or an alley. Field v. Barling, 149 IlL 556, 37 N.
E. 850. The authorities as to what are individual instances of irreparable
injuries will be found collected in Wood, Nuis. c. 25. Blasting, Wilsey v.
CaUanan, 66 Hun, 629, 21 N. Y. Supp. 165; Rogers v. Haufleld, 14 Daly, 339;
droppings of cattle. Barton v. Union Cattle Co., 28 Neb. 350, 44 N. W. 454;
discharge of sewerage, New York Cent & H. R. R.. Co. v. City of Rochester,
127 N. Y. 591, 28 N. E. 416; elevated railway. Berheimer v. Manhattan R.
Co., 26 Abb. N. C. 88. Injunction refused: Noise caused by removing scen-
ery, disturbing sleep, Penrose v. Nixon, 140 Pa. St. 45, 21 Atl. 364; Straus
V. Bamett, 140 Pa. St. Ill, 21 Atl. 253; electric plant, English v. Progress
Electric Light &, Motor Co., 05 Ala. 259, 10 South. 134; neighborhood squab-
bles, Medford v. Levy, 31 W. Va. 649, 8 S. E. 302.

327 Paddock v. Somes, 102 Mo. 226, 14 S. W. 746; Wood, Nuis. S 780.

828 McMenomy v. Baud, 87 Cal. 134, 26 Pac. 795 (where It was held that
the Injurious i)ortions of a foundry and macnine shop would be abated
without stopping entire works). But an injunction against a livery stable
will not be limited to restraining the manner of keeping it Bm'dltt v.
Swenson, 67 Am. Dec. 665.

339 East Tennessee, V. & 6. Ry. Co. v. Sellers, 85 Ga. 853, 11 S. E. 543.

330 As by a city against a railroad company constructing a road over a
street. See City of Moundsville v. Ohio River R. Co., 37 W. Va. 92, 16 S.
B. 514; Gardner v. Stroever, 89 Cal. 26, 26 Pac. 618. Cf. McMenomy v. Baud,
87 Cal. lai, 26 Pac. 795.

381 City of Conyers v. Smith (Ga.) 19 S. B. 882; McGuii*e v. Bloomingdale
(Com. PI.) 29 N. Y. Supp. 580.

33 2 I Pom. Eq. Jur. § 237; Emory v. Hazard Powder Co., 53 Am. Rep. 730.
By statute, Harley v. MeiTlll Brick Co., 83 Iowa, 73, 48 N. W. 1000. The
destruction of building, Kelk v. Pearson, 6 Ch. App. Cas. 809. Cessation of
work, Lingwood v. Stowmarket Co., 1 L. R. Eq. 77, 336.

80S NUISANCE. [Ch. 11

Damages.

Damages may be awarded under circumstances which might not
entitle one to an injunction restraining or abating the alleged nui-
sance. Thus, the proximity of a legal, but undesirable, business
may inflict such damages as will entitle the owTier of the adioining
premises to redress at law in the form of an award of damages by
the jury, in Tiew of all the circumstances.*'* Difference in value
between the property with and without the nuisance, by which a
sale is defeated,*** depreciation of property,*** loss of rents or rental
value,*** loss of profits or crops,**^ are all proper elements for the
consideration of a jury in determining compensatory damages.
Damages where the nuisance is continuing, have already been con-

«

883 Robb V. Carnegie Bros. & Co., 145 Pa. St. 324, 22 Atl. 649; Keiser v.
Mahanoy City Gas Co., 143 Pa, St 276, 22 Atl. 759; ante, p. 803, *'Jiquitable
lielietr

384 Moore v. Laugdon, 6 Mackey, 6. Cf. note 2, 16 Am. & Bng. Enc. Law,
984. The measure of damages for the withdrawal of lateral sui^ort of land
is the diminution of the value of the land caused by the fall of the solL
Schultz V. Bower (Mhin.) 59 N. W. 631; McGettigan v. Potts, 149 Pa. St. 155,
24 Atl. 198.

33 6 Rosenthal v. Taylor, B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268; Babb
V. Curators of the University of Missouri, 40 Mo. App. 173. Although the
property was vacant. Peck v. Elder, 3 Sandf. 126; Dana v. Valentine, 5
Mete. (Mass.) 8. But see Hopkins v. Western Pacific R. Co., 50 Cal. 190.
Cf. Francis v. Schoellkopf, 53 N. Y. 152; Wesson v. Washburn Iron Co.,
13 Allen, 95.

336 Willey V. Hunter, 57 Vt. 479; Herbert v. Rainey, 162 Pa. St. 525, 29
Atl. 725; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Stetson v.
Faxon, 31 Am. Dec. 123; Woodin v. Wentworth, 57 Mich. 278, 23 N. W. 813;
Crawford v. I^arsons, 63 N. H. 438; Randolf v. Town of Bloomfleld, 77 Iowa,
50, 41 N. W. 562. But see Selma & M. R. Co. v. Knapp, 42 Ala. 480; Baken v.
Boston, 22 Am. Dec. 421.

337 Lawson v. Price, 45 Md. 123; Gibson v. Fischer, 68 Iowa, 29, 25 N. W.
Oil; Simmons v. Brown, 5 R. I. 299; French v. Connecticut Ri/er Lumber
Co., 145 Mass. 261, 14 N. E. 113; Lommeland v. St Paul, M. & M. Ry.
Co., 35 Minn. 412, 29 N. W. 119; Folsom v. Apple River Log-Driving Co., 41
Wis. 602; Grand Rapids B. Co. v. Jarvis, 30 Mich. 308. Expense of prose-
cuting action has been held a proper element of damage in action for injury
by obstruction of highway. Linsley v. Bushnell, 15 Conn. 255; Keay v. New
Orleans Canal & Banking Co., 7 La. Ann. 259. But not proper in action for
flooding land. Good v. Mylin, 8 Pa. St 51,

<}h. llj .UEMEDIES. 80l>

sidered.'" Damages for a nuisance will be limited to title or right
of the plaintiff, as in trespass.''^^ Nominal damages have already
been considered. Special damages must be particularly alleged and
proved.'*** A fortiori, in the case of public nuisance, the plaintiff
in a private action must plead and prove special damages as to him-
self.^*^ Exemplary damages are awarded on ordinary principles.^ *^
In general, the same rule of damages applies in nuisance as in tres-
pass.'*' In an action against an adjoining property owner to re-
cover for damage sustained by the caving in of another's property,
consequent upon such owner's excavations on his own land, any dam-
age further than the actual caving in — ^as the obstruction of drains^
or destruction of a fence — must be specially alleged, and its money
value shown, to entitle the plaintiff to recover therefor.'**

»38 3 Suth. Dam. 2272-2277. No damage accruing after the commencement
of a suit may be recovered when the injury is continuing; subsequent dam-
ages are recoverable by subsequent suit. Schlitz Brewing Co. v. Compton^
142 III. 511, 32 N. E. 693; Hudson v. Burk, 48 Mo. App. 314; Commlnge v.
Stevenson, 76 Tex. 642, 13 S. W. 556.

33» Francis v. SclioeUkopf, 53 N. Y. 152; Seely v. Alden, 61 Pa. St. 302;'
Staple V. Spring, 10 Mass. 72.

840 Thus, in an action for a nuisance of a privy, plaintiff was not permitted
tf^ show pollution of his well and unmerchantable character of beer made
therewith, because not allegied as special damages. Solms v. Lias, 16 Abb.
Prac. 311. Et vide Baugh v. Texas & N. O. R*. Co., 80 Tex. 56, 15 S. W.
587; Board of Health and Vital Statistics of Hudson County v. New York
Horse Manure Co., 47 N. J. Eq. 1, 19 Atl. 1098; Vanderslice v. Newton, 4 N.
Y. 30; Griggs v. Fleckenstein, 14 Minn. 81. Special damages from blasting,
and putting in. fear, 3 Suth.- Dam. 2296-2298. Removing lateral support, Id.
Injury to business, et sim.. Id. 2298-2302.

3*1 Hart V. Evans, 8 Pa. St. 13.

»42 Morford v. Woodworth, 7 Ind. 83; McFadden v. Rausch, 119 Pa. St. 507,
13 Atl. 459; Hays v. Askew, 7 Jones (N. C.) 272; Parrott v. Housatonic K.
Co., 47 Conn. 575.

8*s 3 Suth. Dam. 2270-2272; ante, p. G92. In an action for diversion of water,
the evidence showed that plaintiff, in order to use the water of the stream,
had dammed it up so that it formed a pond, which overflowed part of de-
fendant's land, and it did not appear that, without such overflow, defendant
could have used the water. Held, that he could only recover nominal dam*
ages, since he could not base his right of action on his own wrong. Shotwell
▼. Dodge (Wash.) 36 P. 254.

»** Stimmel v. Brown, 7 Houst. (Del.) 219, 30 AtL 996.

^10 NEGLIGENCE. [Ch. 12

NEGLIGENCE.
246. Essential Elements.

247.

Care— Degrees.

248.

Mental Element

2«).

Duty.

250-258.

Common-Law Duties.

259-2(;2.

Contract Duties.

263.

Statutory Duties.

2(U-268.

Violation of Duty.

200.

Damages.

270.

Contributoi-y Negligence,

271-274.

Elements of Contributory Negligence.

275.

Comparative Negligence.

27(VJ78.

Vicarious Negligence.

ESSENTIAL ELEMENTS.

246. The essential elements of negligence are:

(a) Failure to exercise conunensnrate care, involving

(b) A breach of duty, resulting in «

(c) Damage to the plaintiff.^

History.

Actions for the negligent performance of contracts are very an-
cient, but it would seem that, until the statute of Westm. 11., the

1 This does not attempt to be a definitioQ, but is designed to distinguish for
discussion what are conceived to be the principle elements of the indefinable
term "negligence." Many delinitions will l>e found collated in 16 Am. & Eng.
Enc. Law, 389. Et vide notes to 11 Am. St. Rep. 548, 12 Am. St. Rep. 700.
The current definitions are of many types. As to the conventional type, that
of Mr. Cooley— '*Negligence is the failure to obsoi-ve. for the protection of the
interest of another, that degree of care, precaution, and vigilance which the
circumstances justly demand" (Cooley, Torts, p. 630)— has met with general ap-
probation. City of Terre Haute v. Hudnut, 112 Ind. 542-545, 13 N. E. 680.
Et vide Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Brown v. Con-
gress & B. St. Ry. Co., 49 Mich. 153, 13 N. W. 494. Baron Alderson's defini-
tion is famous: **Negligence is the omission to do something which a reason-
able and prudent man, guided by those considerations which ordinarily regu-
late the conduct of human affairs, would do, or doing something a prudent

Ch. 12] ESSENTIAL ELEMENTS. 811

injured party was probably without redress by action at law.* The
action on the case evolved under this statute was easily applied to
trespass or malfeasance. ° Thus, case was applied to the wrong-
ful shoeing of a horse,* or the malpractice of a physician,^ and to
the loss of luggage by an innkeeper.* Ft was finally determined

man would not do." Blyth v. Birmingham Water Works, 11 Exch. 781-78-4;
Bret, J., in Smith v. London & S. W. R. Oo. (1870) L. R. 5 C. P. 98-102.
Compare GaUoway v. Chicago, R. I. & P. Ry. Co., 87 Iowa, 458, 54 N. W. 447;
Nitroglycerine Case, 15 Wall. 524. "Where a duty is defined, a failure to
perform it la negligence." The analytical type is well represented by that of
Shear. & R. Neg. § 5 (approved in Bev. Neg. 5): "Negligence consists in: (1)
A legal duty to use .care; (2) a breach of that duty; (3) the absence of distinct
intention to produce the precise damage, if any, which actually follows. With
this negligence, in order to sustain a civil action, there must concur: (1) Dam-
age to the plaintiff; (2) a natural and continuous sequence, uninterruptedly
connecting the breach of duty with the damage, as cause and effect." The
admirable definition contained in 10 Am. & Eng. Enc. Ijiw, 389, its: "Actiona-
ble negUgence is the Inadvertent failure of a legally responsible person to use
ordinary care, under the circumstances, in observing or perfonning a noncon-
tractual duty, implied by law, which failure is the proximate cause of in-
jury to a person to whom the duty Is due." And see Farrell v. Waterbury
Horse R. Co., GO Conn. 239, 21 Atl. 675, and 22 Atl. 544. Of the metaphysical
or psychological type, that of Austin (1 Aust. Jur. lect. 20) is pre-eminent: 'In
cases of negligence, the party performs not an act to which he is obliged;
he breaks a positive duty. In case of heedlessness or nishness, the party
does an act which he is bound to forbear; he breaks a negative duty. In
cases of negligence, he averts not the act which it is his duty to do. In
cases of heedlessness, he averts not the consequences of the act he does.
In cases of i-ashness, he adverts to those consequences of the act, but. by
reason of some assumption which he examines insufilciently, he concluded
that those consequences wiU not follow the act in the instance before him."
Mr. Piggott has formulated what may be called a **rule of thumb,"— whieli,
upon reflection, is not unlikely to prove more practicaUy satisfactoiy than
any other formula: "Legally, 'negligence' may be regarded as a convenient
term under which are grouped all those acts, whether of commission or
omission, which do not fall under the head of malice or fraudulent injury,
nor to which definite names, as 'trespass,* 'slander,' 'libel/ 'false imprison-
ment,' are applied." Pig. Torts, 208, 229.

2 Bigelow, Lead. Cas. Torts, 5S4, 585.

8 2 Reeves, Eng. Law, 395; 1 Spence, Eq. Jur. !WL

4 40 Edw. III. p. 19.

6 48 Edw. III. p. 6.

« 42 Edw, III. p. 13.

812 NEGLIGENCE. [Ch. 12"

that an action on the case would lie as well for nonfeasance as for
malfeasance.^ In the celebrated case of Coggs v. Barnard,® it was-
held that, if a man undertook to carry goods safely and securely,
he is responsible for any damage they may sustain in the carriage,,
from his gross negligence, though he was not a common carrier^
and was to have nothing for the carriage. In this case, the first •"
extensive examination (by the courts) of the Roman law of negli-
gence, and the first attempt to apply its doctrine to English juris-
prudence, was made by Lord Holt. "It so happened, however, that
both Lord Holt and Sir W. Jones, who did so much to form opinion-
in these departments, relied for authority on the scholastic jurists
of the middle ages, rather than on the classical jurists of business-
Rome; and it was but natural that Judge Story and Chancellor
Kent — the treatise of Gains not having been as yet discovered, and
the chief accessible summaries of the corpus juris being those of the
scholastic jurists — should have followed Lord Holt and Sir W-
Jones. Between the scholastic and the classical jurists, however,
there is a conflict. ♦ ♦ ♦ The scholastic theories on the above-
topics are the products of a recluse and visionary jurisprudence
scheming for an ideal humanity; the classical theories as contained
in the corpus juris are the products of a practical and regulative
jurisprudence based, by the tentative processes of centuries, on hu-
manity as it really is, and so framed as to form a suitable code for
a nation which controlled, in periods of high civilization, the busi-
ness of the globe. Hence, when the attempt was made to enforce
the scholastic jurisprudence in the business transactions of England
and of the United States, it was but natural that judges should
stagger at refinements so unsuitable for practical use; and, hence^
we can understand also how Judge Story, enthusiastic as was his
admiration for the civil law (which includes, in his acceptation of
the term, the scholastic jurisprudence), should have shrunk from
judicially imposing the subtleties which he accepted as theoretically
sound. The consequence was that our adjudications have been on
one plane of jurisprudence, and our principles on another plane,
'jfhe necessities of business life drove us to approach the law of busi-

T 21 Hen. VII. p. 4L •2 Ld. Uaym. 909.

9 Bigelow, Lead Caa. 589.

Ch. 12] ESSENTIAL ELEMENTS. 813

ness Rome, while the authority of our jurists induced us to still
<:ling to the idealistic fictions of mediaevalism." ^®

The bulk of the law of negligence is of modem origin. The appli-
•catlon of general principles to questions arising from the modern
kinds of common carriers generally, street and ordinary railways
-especially, and from the various deyelopments of steam and elec-
tricity, has necessarily been recent.

Negligence a Distinct Wrong,

''Negligence is not used in legal language with so much strictness
^s jurisprudence requires." ^^ "The undefined latitude of meaning,"
-said Erie, C. J., "in which the word ^negligence' has been used, ap-
pears to me to have introduced the evil of uncertain law to a per-
nicious extent." ^^ There may conveniently be said to be two views
-of negligence. One is historical, and has reference chiefly to the
law adjective. At common law, facts constituting negligence gave
Tise to an action on the case, as distinguished from trespass.** This
served to distinguish it from assault and battery,** false imprison-
menty seduction, and the like. Among actions on the case, negli-

10 Preface, Wliart. Neg. (1st Ed.). The New World v. King, 16 How. 460-
-474.

11 Pig. Torts, 20S; Clerk & L. Torts, p. 10.
i» Quoted Pi«. Torts, p. 229.

i« Bramwell, B., in Lay v. Midland Ry. Co., 30 Law T. (N. S.) 520.

1* Negligence and assault and battery are easily distinguished from one
lK)int of view. At one extreme, where there Is conscious intention to commit
the act, trespass is the form of action, and "assault and battery" the name of
the wrong. Where, at the other extreme, there is mere carelessness or inad- .
■vertence, case is the form of action, and "negligence" the name of the wrong.
But between these extremes the line of demarcation is not clear, and has
been much confused in fact, as wiU be seen in the subsequent discussion of
Tirillful negligence. There may be actionable assault and battery without
.actual or specific intent to do that wrong. Reckless disregard of consequences
may Imply intent in law, as riding a bicycle against an uilofTonding person.
Mercer v. Corbin, 117 Ind. 4.'>0, 20 N. E. 132. Contributory negligence of
plaintiff may be a bar to an action in case for negligence, but not to an action
of trespass for an assault Anniston Pipe- Works v. Dickey, 9.3 Ala. 418, 0
South. 720. As to whether or not responsibility attaches in course of hand-
ling or using a gun, on the ground of assault and battery or negligence, see
Morgan v. Cox, 22 Mo. 373. And see Vincent v. Steinehour, 7 Vt. Gl; Wrght
^. Clark, 50 Vt. 130.

814 NEGLIGENCE. [Cll. 12

gence and conversion, as has been seen,* sometimes touch each other^
but are manifestly distinguishable. Deceit, libel and slander, nui-
sance,^ ° and malicious prosecution, at common law, were, in practice
and in historical development, clearly separated from negligence. But
negligence and fraud overlap. Negligence is not, and fraud is pri-
marily, a wrong of intent, actual or constructive. Negligence may,
however, be evidence of fraud.^' Negligence, therefore, was used as
a residuum. It included what was not taken up by other common-law

♦ Ante, pp. 718, 270, note 354.

10 Ante, p. 771, "Nuisance." The difference between negligence and nui-
sance, properly speaking, may be well iUustrated by the cases where perco-
lating waters are polluted, where the liability arises from doing a proper act
on defendant's land in so negligent a way as to produce damage. Thus, al-
lowing manui-e to remain after notice, whereby a well is corrupted, is negli-
gence. Woodward v. Aborn, 35 Me. 271; Stainton v. Woolrych, 23 Beav. 225.
See Collins v. Chartiers Val. Gas Co., 139 Pa. St 111, 21 Atl. 147. But where
the water is polluted by the percolation of matters, like oil, offensive in them-
selves, the wrong is nuisance pure and simple. Pottstown Gas Co. v. Murphj',
39 Pa. St. 257; Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio St. 392;
Ottawa Gas Light & Coke Co. v. Graham, 28 111. 73. But see CoUins v. Char-
tiers Val. Gas Co., 131 Pa. St. 143, 21 Atl. 147.

i« This distinction between negligence and fraud Is well presented by
Boardsley, J.: "Fraud and negligence are by no means identical in tlieir
nature or effect. Fraud is a deceitful practice or willful device resorted to
with intent to deprive another of his right, or in some manner to do him an in-
Juiy. It is always positive. The mind concxu^ with tlie act What is done
Is done designedly and knowingly. But in negligence, whatever may be its
grade, there is no purpose to do a wrongful act, or to omit the performance
of a duty. There Is, however, an absence of proper attention, care, or skill.
It is, strictly, nonfeasance, not malfeasance. This is the general idea, and it
marks the distinction between negligence and fraud. In the first there is no
positive intention to do a wrongful act; but in the latter, a wrongful act is
ever designed and Intended. Negligence, in its various degrees, ranges be-
tween pure accident and actual fraud, the latter commeuclng where negligence
ends. Negligence is evidence of fraud, but still is not fraud." Gardner v.
lleartt 3 Denio (N. Y.) 232, 23C, 237. If a register of dee<ls damages plainUff
by an error in an abstract of title, intentionally, the wrong is fraud; if care-
lessly only, the wrong is negligence. Smith v. Holmes, 54 Mich. 104, 19 N. W.
767. With respect to sale of deceased animals, see Jeffery v. Blglow, 13 Wend.
(N. Y.) 518. Cf. State v. Fox (Md.) 29 AU. GOl. With respect to dangerous in-
strumentalities, as a gim, see Langridge v. Levy, 2 MeOvS. & W. 519, 4 Mees. &
W. 337. As to constructive fraud and negligence, see Finch, J., in Rich v. New

Ch. 12] ESSEXriAl. ELEMENTS. 815

actions ex delicto.*^ This use of the term leads, inter alia, to the
anomaly of classifying under the head of **Negligence" the group
of cases of wliich Rylands v. Fletcher ^* is an exponent. These
cases are not determined by the principles of negligence, but in-
volve breach of duty to insure safety. Liability in them is irre-
spective of the exercise of care. Indeed, no showing or proof of due
diligence on the defendant's part will exonerate him.^® Therefore, at
common law, "negligence^ was necessarily a vague term.

The more modern view of negligence, emphasized especially by
jurisprudents, and necessitated by the abolition of forms of actions,
is much broader. It is based on distinctions in the law substantive.
It regards negligence as one of the three general bases of liability
in torts; that is: (a) in some cases, a man acts at his peril; (b) in
others, bad motive determines his liability; and, (c) finally, he may
be liable because of negligence proper. Hence, even as to libel and
slander, the question may arise whether responsibility cannot, in
some instances, be governed by principles of negligence, or be re-
ferred to cases in which men act at their peril.^^

Practically, there is an increasing tendency to regard negligence,
not as a general subject capable of a logical division on the lin<»s^
of general principles but as a set of common rules applying to
specified classes of cases; as railway negligence, negligence as be-
tween master and servant, negligence of common carriers, and tho
like. This view of the subject has the advantage 'of convenience,
— not to be made light of, or disregarded.

York Cent. R. Co., 87 N. Y. 382. As to contributory negligence on the part
of a person misled, see Smitli v. Land Corp., 28 Cli. Div. 7; Redgrave v. Hurd,
20 Ch. Div. 1; David v. Parli, 103 Mass. 501; Schweuck v. Naylor, 102 N. Y,
683, 7 N. E. 778. The same nile for damages should apply in cases of fraud
and in cases of negligence. Bigelow, Fraud, 634.

17 Pig. Torts, 208-229. i8 L. R. 3 H. L. 330.

18 The English text-books often consider these cases as separate wrongs:
"Duties to insure safety." Pol. Torts, p. 11. "Of certain wider duties imposed
by the policy of the law in certain cases." Fraser, Torts, 146. Inasmuch,
however, as the doctrine of Rylands v. Fletcher, h. R. 3 H. L. 330, has been
by no moans universally followed in America, and cases involving the same or
analogous principles are determined as cases of negligence, a separate division^
it is thought, is neither necessary nor usefiiL

20 8 Harv. Law Rev. 200. Ante, p. 516. note 3o2. As to conversion, see
ante, pp. 718, 720, note 354. As to .nuisance, ante, p. 752, note 38; p. 746, note
14; p. 747, note 17; pp. 771, 772.

818 NEGLIGENCE. [Ch. 12

On the other hand, in accordance with the classical jurists, it is in-
sisted that negligence is of two kinds or branches, as distinguished
from degrees, viz.: The lack of care which a good specialist would
exercise, and the want of ordinary care that is taken by persons
who are not specialists.^®

Instead of adopting these degrees of negligence, the current tend-
ency of the courts and law writers ^* seems to be to recognize only
the standard of proportionate or commensurate care.**^ In cases of

may be doubted, however, whether the attempted abandonment of the
three degrees of negligence accomplished much. There is no possible es-
cape from the variation In requirement of degrees of care, and it would
seem that light is thrown on this difficult subject by the attempts of the
courts to define cases in which the respective degrees are required, instead
of leaving the law as applied to the facts in chaos. The objections as to
indeflniteness to the distinction between the degrees would apply with equal
effect to the distinction of damages into nominal, compensatory, and ex-
emplary. No possible theory will enable couits to escape the indeflnite-
ness naturally in the subject. Moreover, as was said. by Lord Chelmsford
In Giblln v. McMuUen, L. R. 2 P. O. 317-337: "Gross negligence is a con-
venient phrase to express the idea that the degree of care required of de-
fendant is small." "In each case the negligence, whatever epithet we give
it, is failure to bestow the care and skill which the situation demands;
and hence it is more strictly accurate perhaps to call it simply 'negligence.'
And this seems to be the tendency of modern authorities. If they mean
more than this, and seek to abolish the distinction of degrees of care,
skill, and diligence, required in the performance of the various duties and
the fulfillment of various contracts, we think they go too far, since the
requirement of different degrees of care in different situations is too firmly
settled and fixed in the law to be ignored or changed. The compUers of the
French Civil Code undertook to abolish these distinctions by enacting that
'every act whatever of man that causes damages to another obliges him
by whose fault it happened to repair it.' Toullier, in his Commentary on
the Code, regards this as a happy thought, and a return to the law of
nature. But such an iron nile is too regardless of the foundation prin-
ciples of human duty, and must often operate with great severity and in-
justice." Mr. Justice Bradley, in New York Cent. R. Co. v. Lockwood, 17
Wall. 357-383. "It is impossible for the law to furnish, as to the degree
of care, any rule like a yardstick applied to the measuring of cloth." Bish.
Noncont. Law, § 439.

28 Bev. Neg. 30, 31; Bigelow, Torts, 293.

2» A review of the disappearance of degrees of negUgence by Frederic C
Woodward will be found in 1 N. Y. Law Rev. 16.

80 Hall V. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Meredith v.

Ch. 12] ESSENTIAL ELEMENTS. 83 9

pure tort, there is only one standard of conduct (that of ordinary
diligence), and only one criterion of diligence (the conduct of the
prudent man). In taldng into consideration what would he the
conduct of a prudent man under the given circumstances, it is, of
course, essential, in cases where special skill is required, to dis-
tinguish between what would be the conduct of a prudent man pos-
sessing the particular skill required, and that of a prudent man
who did not possess that skill.'* This standard may vary in fact,
but not in law.** Even in cases of gratuitous bailment, gross
negligence is nothing more than a failure to bestow the care which
the pi-operty, in its situation, demands. The omission of the rea-
sonable care required is the negligence which creates the liabil-
ity.** In other words, "commensurate care" and "strict responsi-
bility" may be equivalent.'* The jury stands in the place of a
I>rudent man, and determines the standard of his conduct.^ ^ The
standard of care required by law is a practical one. Failure to

Reed, 26 Ind. 334. Et vide Barnum v. Terhenlng, 75 Mich. 557, 42 N. W. 9G7;
Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Michigan Cent.
R. Co. V. Coleman, 28 Mich. 440; Pennsylvania Co. v. O'Shaughnessy, 122
Ind. 588, 23 N. E. 675; Smith v. New York Cent. R. Co., 24 N. Y. 222; Per-
kins v. New York Cent R. Co., Id. 196; Hinton v. Dibbins, 1 Q. B. Div. 661;
McAdoo V. Richmond & D. R. Co., 105 N. C. 140, 11 S. E. 316; Wyld v. Pick-
ford. 8 Mees. & W. 442; Storer v. Go wen, 18 Me. 174; Story, BaUm. § 11;
I^ne V. Boston & A. R. R., 112 Mass. 455; 6 Alb. Law J. 313; 22 Am. Law
Reg. (N. S.) 126, note.

»i Perhaps as clear a statement of the test as can be found is this: "What
a discreet man should do, or ordinarily do, in such cases, where his own in-
terests are affected, and all the risk his own." Hoffman v. Tuolumne, etc.,
Co., 10 Cal. 413, Ball, Lead. Cas. Torts, 225, 226; Clerk & L. Torts, 355; Spo-
kane Truck & Dray Co. v. Hoefer, 2 Wash. St. 45, 25 Pac. 1072; Austin &
N. W. Ry. Co. V. Beatty, 73 Tex. 592, 11 S. W. 858; Texas & P. R. Co. v.
Gorman, 2 Tex. Civ. App. 144, 21 S. W. 15a Not "average." Marsh v. Benton
Co., 75 Iowa, 469-471, 39 N. W. 713.

»2 Ames & S. Cas. Torts, 143.

88 Applied BO as to attach liability of bank for bonds received by it for safe-
keeping, put in their vaults, and stolen by a speculating cashier. Preston v.
Prather, 137 U. S. 601, 11 Sup. Ct. 162. "Gross" is a word of description;
not of definition. Willis, J., in Grill v. General Iron S. C. Co., Ij. R. 1 C. P.

600.
84 But see Whart. Neg. §§ 26, 48.
8B O. W. Hohnes, Jr., 7 Am. L. R. 562,

820 NEGLIGENCE. [Gh. 12

accomplish an impossibility is not negligence. The rules of law
mnst be reasonable, not opipressive.^® , Where the standard of the
law is absolute, the wrong done is not negligence, but a breach
of the duty of safety.'^ No analysis of what is due care under the
circumstances is likely to be satisfactory. They are infinitely and
curiously various. "Commensurate care" varies, not only with
dangers inherent in nature, but also with the artificial relations
of parties recognized by law,'* and the property rights of others.'*

248. The prevailing tendency Is to regard negligence not
as a state of mind, nor as involving intention, but
as requiring inadvertence as an essential element.

Austin's theory of liability in tort led him to accept the doctrine
that negligence means a state of the party's mind.*^ He distin-
guished carefully between negligence, recklessness, and heedlessness.
The last two referred to intentional acts. In the simple case of
intentional acts, there is a knowledge of the consequences and a de-
liberate intention that they shall follow* the act. Where, however,
there is a knowledge of the consequence and no deliberate intention
that they shall follow the act, this neglect of consequence is termed
recklessness; and where there is no knowledge of the consequence
and no regard is paid to whether any or none follows, the intentional
act is termed heedlessness. Negligence, on the other hand, implies
the neglect of an act.*^ Negligence and heedlessness both suppose
unconsciousness. In the first case, the party does not think of a

3« Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Batterson v. Chicago &
G. T. Ry. Co., 49 Mich. 184, 13 N. W. 508; Michigan Cent. R. Co. v. Dolan,
32 Mich. 514; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537;- Davles
V. Mann, 10 Mees. & W. 54G; Butterfield v. Forrester, 11 East, CO.

87 Post, p. 832.

88 Cf. Hall V. Chicago, etc., R. Co., ante, note 30, with McDonough v. Lan-
pher,55 Minn. 501, 57 N.W.152; Wise v. Ackerman, 76 Md. 375-389, 25 Atl.424.

ao Steamboat Fanner v. McCraw, 02 Am. Dec. 718.

*o Aust. Jur. (3d Ed.) 440, 474, 484, lects. 20. 24, 25. Et vide Holmes, Com.
Law, p. 82; Innes, Toi-ts, 6; Ball, Lead. Cas. Torts, 322; Thomp. Neg. pref.

*i Pig. Torts, 207. In Innes on Torts the term "rashness'* is used, and la
said to be a disregard of rights. :ind want of due care, shown in the prob-

Ch. 12] ESSENTIAL ELEMENTS. 821

given act; in the second case, the party does not think of a given
consequence.*^

Heedlessness and recklessness, however, are not independently
recognized in the law.*^ And there is no doubt but that in very
many cases a party's state of mind, or, more accurately, his knowl-
edge, is an essential element in the determination of what is negli-
gence. Under certain circumstances, knowledge of the facts from
which a duty arises is conclusively presumed; in others, the party
charging negligence must show that knowledge existed.*^ Vigilance
and attention are material elements, and must conform to the nature
of the emergency.*** An extreme view, indeed, is that negligence is
a failure of duty, generally unintentional, but sometimes inten-
tional.*'

Inadvertence Essential to Negligence,

But it is strenuously denied that negligence is a state of the
mind,*' and that it can evei^, strictly speaking, be intentional.*' It

abiUtj that harm will result, beingg foreseen more or less clearly, and yet
risked. Negligent conduct is, in its inception, harmless, and is followed,
as an unintended consequence, by Injury which might have been avoided by
the exercise of due care. Rash conduct on the other hand, results in in-
jury under circumstances where, although It might have had no bad results,
it must have, or ought to have, presented Itself to his mind as being lilcely to
produce damage, or "as being such conduct as in the absence of a degree
of prudence or care on his part, or on the part of others, through whose
instrumentality he acted, the continual exercise of which prudence or care
could not be expected, entailed a risk, of itself resulting hi such interference,
and he nevertheless, pursued the course of conduct, taking the chances of
such effect resulting or not" Cf. Holl. Jur. M; Whart. Xeg. §§ 11-17.

*2 Aust Jur. lect 20, § 632. -^

*3 Pig. Torts, 208. Et vide Lduisville & N. R. Co. v. Barker, 96 Ala. 4§o.
11 South. 453; Kansas City, M. & B. R. Co. v. Crocker. 05 Ala. 412, 11 South.
262.

** Thus, knowledge of the vicious propensity of a wild animal is presumed,
but such knowledge of a domestic animal must be shown. Post, p. 853,
"Animals."

*5 Hutchinson v. Boston G. L. Co., 122 Mass. 21{>-222.

*• Preface to Thomp. Neg.

*7 Pol. Torts, 355, 35G; Clerk & L. Torts, 355.

*« Evidence of defendant's intent is not admissible in an action for negli-
gence. Hankins v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867. Generally,
negligence is not designed. Gove v. Farmers' Ins. Co., 48 N. H. 41.

J'

822 NEGLIGENCE. [Ch. 12

is urged with great force that negligence is distinguished from crim-
inal wrong or willful tort by the element of inadvertence on the part
of the person causing the injury.*^ **When the injury is intentional,
the case is infected with malice or dolus, and a suit for negligence
cannot be maintained.^ *• It would appear certain that the presence
of good faith,"^ or the absence of intent,*^ does not prevent liability
for negligence. In its ordinary acceptation, negligence does not
include malice; and courts have refused to give it any other.**
Willful wrong differs from wrong arising from mere inadvertence
in many practical substantial respects. The measure of damages
for mere negligence is compensation; for willful wrong, exemplary
damages are awarded.** Liability for negligence extends only to
proximate consequences; liability for willful wrong extends also to
remote consequences. * ' Contributory negligence is a complete answer
in an action for negligence, but is not a bar to an action for willful
tort.** Again, while a carrier may limit his liability to the agreed
value of goods shipped, such limitation will not protect him against

40 16 Am. & Bug. Enc. Law, 302; Detroit & M. R. Co. v. Van Steinburi?,
17 Mich. 90.

»o Whart. Neg:. § 11; 2 Tliomp. Neg. 739, note 3; BIsh. Noncont. Law, 501.

81 liincoln v. Buckmaster, 32 Vt. 052; LoiiisviUe & N. R. Co. v. McCoy, 81
Ky. 403.

02 Sharp v. Bonner, 36 Ga. 418; TaUy v. Ayres, 3 Sneed (Tenn.) 677;
Danner v. South Carolina R. Co., 4 Rich. Law, 329; Amick v. O'Hara, 0
Blackf. (Ind.) 258; Blaen Avon Coal Co. v. McCulloh, 59 Md. 403; Bish.
Noncont. Law, § 409.

83 Alontgomery v. Muskegon Booming Co., 88 Mich. 633-G44, 50 N. W. 729;
overruled, Richter v. Harper, 95 Mich. 221-226, 54 N. W. 7(;a

84 That exemplar^' damages are allowed in .cases where there has been
some willful misconduct, or that entire want of care which raises the pre>
sumption of a conscious indifference to consequences, is settled by the su-
preme court of the Unite<l States. Fell v. Northern Pac. R. Co., 44 Fed. 24S-
254; Milwaukee Ry. Co. v. Arms, 91 U. S. 480-495.

85 16 Am. & Eng. Enc. Law. 303; ante, p. 382.

66 If weU pleaded: McAdoo v. Railroad Co., 195 N. C. 140, 11 S. B. 316;
Kansas City, M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; Penn-
sylvania Co. V. Myers, 136 Ind. 242, 36 N. R. 32; Lake Shoi-e & M. S. Ry. Co.
V. Bodemer, 130 111. 506, 20 N. B. 692; Lychfield Coal Co. v. Taylor, 81 lU.
590, affirmed 33 111. App. 470; Durant v. Coal Min. Co., 97 Mo. 62, 10 S. W.
484. Where death results: Louisville Safety- Vault & Trust Co. v. Louisville
& N. R. Co., 92 Ky. 233, 17 S. W. 567; Indianapolis Union Ry. Co. v. Boett-

Ch. 12] E&SENTIAL ELEMKNTS. 823

liability for fraud, nor for "intentional, wanton, or reckless negli-
gence/'*^ To insist that inadvertence is essential to negligence,
and that as soon as conduct ceases to be careless and becomes will-
f ol the cause of action is no longer based on negligence, is in accord
with the traditional distinction between trespass and case, and with
a distinct tendency on the part of modern jurisprudence and the
courts to separate from allied wrongs injuries which rest primarily
on willful or malicious disregard of, or interference with, the rights
of others. **•

WMful and Wanton Negligence.

It is vigorously Insisted that willful negligence involves a contra-
diction in terms, and is a misleading and dangerous expression.**
The cases of negligence, as they arise in practice and are found in
reports, are not determined by theoretical considerations.**^ The
same state of facts may give rise to a cause of action which may be
based on either willfulness or negligence. Gross and reckless neg-
ligence, indeed, may in law amount to intentional mischief.*^ A
plaintiff would naturally claim moral wrong on the defendant's part
whenever possible, l^oth for the purpose of increasing the measure

Cher, 131 Ind. 82, 28 N. E. 551; Menger v. Lauer, 55 N. J. Law, 205, 26 Atl.
180. Et vide Gooley, To);j», 810; 16 Am. & Eng. Edc. Law, 395, note 3, cit-
ing Derby's AdmY v. Kentucky Cent. R. Co. (Ky.) 4 S. W. 303; Carroll v.
Minnesota Val. R. Co., 13 Minn. 30 (Gil. 18); Beach, Contrib. Neg. 49-53;
"Contributory Negligence," 4 Am. & Eng. Enc. Law, 80. But the fact that
defendant, at a point outside the city limits, was running cars at the rate
of 15 miles an hour, and did not give any signal of approach, is not such
wanton negligence as wiU entitle one who attempts to drive across its track
without loc^ng to damages sustained by being stinick by such a car. High-
land Ave. & B. R. Co. v. Maddox, 100 Ala. 618, 13 South. 615.

B7 LouisviUe & N. R. Co. v. Sherrod, 84 Ala. 178, 4 South. 29. Conversely
as to insurance policies. Gove v. Farmers' Ins. Co., 48 N. H. 41. So
action for causing death by "willful negligence" may lie when it could not
be brought for ordinary carelessness. Louisville & N. R. Co. v. ConilTs
AdmY, 90 Ky. 560, 14 S. W. 54?.

ft ft See ante, p. 555, "Malicious Interference with Rights."

s(» 16 Am. & Eng. Enc. Law, 394.

60 Pig. Torts, 208.

81 St. Louis, I. M. & S. Ry. Co. v. Ledbetter, 45 Ark. '246; Shumacher v. St
Louis & S. F. R. Co.. 39 Fed. 174. Et vide Fell v. Northern Pac. R. Co.,
44 Fed. 248-252; Cooley, Torts (2d Ed.) 810.

824 NEGLIGEKCE. [Ch. 12

and extent of his dams^es and to avoid the defense of contributory
negligence. If, however, he should fail to prove willfulness, he may
be able to recover for negligence. At common law, under some cir-

m

cumstances, this would affect the form of the action and necessitate
the use of trespass instead of trespass on the case. Under the code
system of pleading there is no corresponding reason why the two
wrongs should be separated with greater definiteness than is re-
quired to meet the appropriate difference in pleading and evidence.
BLence, actions for "willful negligence" and "wanton negligence" are
continually brought.** And the plaintiff is not required to show
the appropriateness of every adjective used in his complaint There-
fore, if he alleges that the defendant willfully, wantonly, negligently,

«2 WUlful neglect is defined to be an intentional failure to perform a mani-
.fest duty in which the public has an interest, or which is important to the
Iterson injured in either preventing or avoiding the injury. Kentucky Cent.
R. Co; V. Gastineau's Adm'r, 83 Ky. 119-128. And see Newport News & M.
V. Co. V. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 95a Knowledge of the prob-
able consequences is the imputation of willfulness in respect to it, and there
must be a consciousness, on the part of the person charged with misconduct
resulting in injury, that his conduct will necessarily or probably induce a
harmful result complained of, before the law will impute to him a willing-
ness to inflict the 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. There may
be a willful wrong, without a direct design to do harm,— for example, collision
of vessels, taking unruly animals into crowds, carelessly laying out poisons
and the like for rats, want of caution towards drunken persons, careless
placing of Iojis on the hlcrhways, and the like. Palmer v. Railroad Co., 112
Ind. 250, 14 N. E. 70; Petrie v. Columbia & G. R. Co., 29 S. C. 303, 7 S. E.
515; Emry v. Roanoke Nav. & Water-Power Co., Ill N. C. 94r-102, 16 S. B.
18; Jacksonville & S. E. Ry. Co. v. Southworth, 135 lU. 250, 25 N. E. 1093;
Holmes v. Atchison, T. & S. P. R. Co., 48 Mo. App. 79; Shumacher v. St
Louis & S. F. R. Co., 39 Fed. 174; Eskridge's Ex*rs v. Cincinnati, N. O. &
T. P. Ry. Co., 89 Ky. 367, 12 S. W. 580; Ensley Ry. Co. v. Chewning, 93
Ala. 24, 9 South. 458* Collins v. Cincinnati, N. O. & T. P. Ry. Ca (Ky.) 18
S. W. 11; Simmons' Adm'r v. Louisville & N. R. Co., Id. 1024; Alabama
G. S. R. Co. V. Linn (Ala.) 15 South. 508. Evidence that a locomotive was
run in the dark along a much-frequented street at a high and dangerous rate
of speed, without headlight lighted or bell ringing, is sulficient to show
wanton or willful negligence. East St Louis Connecting Ry. Co. v. O'Hara,
49 111. App. 282, afiirmed 150 111. 580, 37 N. E. 917. The term "wiUful neg-
lect" applies only to actions for loss of life involving punitive daniagies.
ChesapeaUo & O. Ry. Co. v. Yost (Ky.) 29 S. W. 326.

Ch. 12] EbSKNTIAL ELEMENTS. 825

and unlawfully did wrong, he can recover on proof of negligence.®*
But there is no harmony on the point. And it has been held that
a complaint which joins in one count the allegation of willful injury
and negligence is demurrable/*

SAME— DUTY.

249. The duty, violation of which gives rise to a cause of
action in negligence, is to exercise due care under
the circumstances. Mere carelessness, resulting in
harm to another person, is not actionable unless
thereby there be violated a duty owed by the wrong-
doer to the sufferer, prescribed by —

(a) Common law;

(b) Contract; or

(c) Statute.

Duty and commensurate care are not two distinct ideas. There
is a universal, necessary, and inevitable connection between them.

•3 Applied to setting fire. Richter v. Harper, 95 Mich. 221-226, 54 N. W.
768^ overruling, as to this point, Montgomery v. Booming Co., 88 Mich. 63.*^
50 N. W. 729, and citing 2 T)iomp. Neg. 1246; Taylor v. Holman, 45 Mo.
371; McCord v. High, 24 Iowa, 336; Panton v. Holland, 17 Johns. (N. Y.)
92. Et vide Chicago & N. W. Ry. Co. v. Dunleavy, 129 lU. 132, 22 N. E. 15.
Such an allegation would sustain a willful injury. Indianapolis Union Ry.
Co. V. Boettcher, 131 Ind. 82, 28 N. E. 651. But, on the other h^d, mere
allegation of negligence will not allow recovery for intentional wrong. Nor
wiU a charge of willfulness be maintained by proof of mere negligence.
Pennsylvania R. Co. v. Smith, 98 Ind. 42; Highland Ave. & B. R. Co. v.
Winn, 93 Ala. 306, 9 South. 509; Chicago, B. & Q. R. Co. v. Dickson, 88 111.
431; O'Brien v. Loomls» 43 Mo. App. 29; Indiana, B. & W. Ry. Co. v. Burdge,
94 Ind. 46. Cf. Louisville, N. A. & C. Ry. Co. v. Bryan, 107 Ind. 51, 7 N.
E. 807; Belt R. R. & Stock- Yard Co. v. Mann, 107 Ind. 89, 7 N. E. 893; Louis-
ville, N. A. &C. Ry. Co. v. Ader, 110 Ind. 37G, 11 N. E. 437. Cf. Terre Haute

6 I. R. Co. V. Graham, 95 Ind. 280, with Southern Exp. Co. v. Brown, 67 Miss.
260-206, 7 South. 318, and 8 South. 425. But allegation of willfulness, in an
action on negligence, is surplusage. Louisville, N. A. & C. Ry. Co. v. Davis,

7 Ind. App. 222. 33 N. E. 451; Moore v. Drayton, 61 Hun, 624, 16 N. Y. Supp.
723. Where, however, the complaint charged simple negligence, it has been
held proper to admit evidence of willful or wanton negligence. Louisville &
N. B. Co. V. Hurt, 101 Ala. 34, 13 South. 130: Richmond & D. R. Co. \.
Farmer, 97 Ala. 141, 12 Sculh. 86.

•* Verner v. Alabama G. S. R. Co. (Ala.) 15 South. 872.

^S2f'> NKGLIGENCE. [Ch. 12

A logical division of the subject of negligence would be (1) the duty
to exercise commensurate care, which is owed by the wrongdoer to
the sufferer; (2) the violation of that duty in fact by the tort feasor;
(3) damage conforming to the legal standard of the person injured.
To adopt this division, however, would be to sacrifice the cases as
they occur for the sake of mere orderly arrangement

"While there may be some shades of difference in the Tarious
definitions of 'negligence,' all the authorities agree that its essential
element consists in a breach of duty, and that, in order to sustain
an action, the plaintiff must state and prove facts sufficient to show
what the duty is, and that the defendant owes it to him/' •• Al-
though there is no dispute as to this most certain of the propositions
in the law of negligence, there is no corresponding clearness or cer-
tainty in the definition of "duty." Common-law duty is derived from
analysis of circumstances. It is determined by the reference of the
law to the various conditions which determine what is commensu-
rate care. Contract duty is, perhaps, no more than the application
of common-law principles to a state of facts of which a contract is
a necessary part. Statutory duty frequently re-enacts the require-
ments of the common law^ and is enforced by conmion-law princi-
ples.

250. The cominon-law duty of exercising care to avoid
harm has reference to —

(a) Course and constitution of nature, as appears espe-

cially in cases involving ^^the use of one's own/'
or cases also treated under insurance of safety;

(b) Knowledge of parties to the wrong;

(c) Capacity and class of the parties to the wrong;

(d) Custom and license.

« 5 Shepherd, J., In Emiy v. Roanoke Nav. & Water-Power Co., Ill N. C.
1)4, 05, 16 S. E. 18, and authorities cited. Et vide Arnold v. Pennsylvania
R. Co., 115 Pa. St. 135, 8 Atl. 213; Newhard v. Pennsylvania R. Co.. 153 Pa.
St. 417. 26 Atl. 105. Cf. Clements v. Louisiana Electric Light Co., 44 La.
Ann. 692, 11 South. 51; Macomber v. Nichols, 34 Mich. 212.

Oh. 12] ESSENTIAL ELEMENTS. 827

260a. What Is due care under the circumstances at com-
mon law refers, inter alia, to —

(a) The course and constitution of inanimate nature.

(b) The course and constitution of animate nature.

(1) Irrational, or

(2) Bational.

Inanivfiate Nature,

The exercise of care also has reference to the ordinary course and
constitution of nature. On this prifaciple the care to be taken of
streets has reference to climatic conditions, in so far as these affect
danger caused by accumulations of snow and ice. Thus, as to the
climate of Minnesota, it is said by Mitchell, J.: •^ "In this new state,
the duty of a city with respect to ice and snow must necessarily be
somewhat limited, and care should be taken that thev be not held
to a degree of diligence beyond what is reasonable, in view of their
situation. What reasoifable care might require in an older coun-
try, or in a milder climate, might be too high a standard in this
climate." While, on the one hand, the natural tendency to do
harm of things of weight, things in motion, and things explosive
must be guarded against with a high degree of care, the law does
not, on the other hand, require provisions against an unprecedented
storm, floods, or other ine\itable casualties caused by the hidden
forces of nature, unknown to common experience, and which could
not have been reasonably anticipated by a prudent and careful
man.®* Inevitable accident, in other words, is equivalent to the ab-
sence of negligence or the absence of thought on the part of the de-
er In Wright V. City of St. Cloud, 54 Minn. 94-97, 55 N. W. 819.
«« Libby V. Maine Cent. R. Co., 85 Me. 34, 26 Atl. 943; Piedmont & C. Ry.
Co. V. McKenzie, 75 Md. 458, 24 Atl. 157. A railroad company, in construct-
ing its roadbed, is not bound to provide against an unprecedented flood, but
is l}ound to provide sufficient culverts or other means for the escape of water
collected and accumulated by its embankments and excavations in any storm
or rain not extraordinary in character and violence. McPherson v. St. I^ouls,
I. M. & S. Ry. Co., 97 Mo. 253, 10 S. W, 840; Brendlinger v. New Hanover
Tp., 148 Pa, St 93, 23 Atl. 1105. The owner of real estate, who keeps the
same in a reasonably safe condition, is not liable to a passer-by on the street

828 NEGUGKNCK. [Ch. 12"

fendant.*® But one who negligently leayes a wire, along which
lightning passes so as to set fire to a building, cannot escape liabil-
ity on the ground that the stroke of lightning was the act of GodJ^

Animate Nature — Anwicd Nature.

The care which must be exercised with respect to animals has
reference — First, to the care of the owners or persons having the
charge, custody, or control of animals (which will be subsequently
discussed); and, secondly, to the care which other persons must ex-
ercise with reference to such animals.

The care which is imposed by the keeping or using of things dan-
gerous in themselves, or which may become dangerous, has regard to
the natural and probable effect upon animals, having reference to
their peculiar nature J ^ Thus, an engineer, in allowing steam to es-
cape,^* or in blowing a whistle,^' must exercise due care when he
knows of the presence of horses, and the company is liable if the
frightening of the animals was due to the failure to exercise that
care which a prudent man would exercise under the circumstances.
Tliat the cause of fright complained of was unnecessary is an element
to be considered.'* But, as to damage caused in frightening animals

who is injured by the falling of a fence during a storm of sufficient violence
to unroof houses and do like damages. Norling v. Allee (City Ct Brook.)
13 N. Y. Snpp. 791.
«o As in CotteriU v. Starkey, 8 Car. & P. 691.

70 Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N. W^ 430.

71 (ileuerally, as to horses frightened by locomotives, Omaha & R. V. Ry. Co.
V. Brady, 39 Neb. 27, 57 N. W. 767; Carraher v. San Francisco Bridge Co.,
100 Cal. 177, 34 Pac. 828; Piollet v. Simmers, 106 Pa. St. 95 (the care of an
agency like a whitewash barrel, mounted on wheels, has reference to tlie
character of an ordinary horse).

7 2 Omaha & R. V. Ky. Co. v. Clarke, 39 Neb. 65. 57 N. W. 545; Presby v.
Grand Tmuk Ry. Co. (N. II.) 22 Atl. 554; Indianapolis Union Ry. Co. v.
Boettcher, 131 lud. 82. 28 N. E. 551. Not liable. Oxford Lake Line Co. v.
Stedham, 101 Ala. 376, 13 South. 553; Cahoon v. Chicago & N. W. Ry. Co.,
85 Wis. 570, 55 N. W. 900. It IS supposed that horses of ordinary gentle-
ness have become so familiar with portable steam engines as to be safe when
imder careful guidance. Piollet v. Simmei*s, 106 Pa. St. 95; Gilbert v. Flint
& P. M. Ry., 51 Mich. 488, 16 N. W. S(kS: Macomber v. Nichols, 34 Mich.
212; LouisviUe, N. A. & C. Ry. Co. v. Schmidt, 134 Ind. 16, 33 N. E. 774.

7 3 Fritts v. New York & X. E. R. Co., 62 Conn. 503, 26 Atl. 347.

74 Omahii & R. V. Ry. Co. v. Clark, 35 Neb. 867. 53 N. W. 970: Toledo,
St. L. iVc K. C. R. Co. V. Crittenden, 42 111. App. 469.

Ch. 12] ESSENTIAL ELKMENTS. 829

by the natural use of an engine, without negligence, as by the dis-
charge of smoke,^** or in the course of the performance of statutory
duties, as sounding a whistle,^* there is no liability, because such
•damage is incident to an authorized act, and does not constitute an
injury. Where, however, there is abuse or negligence in the opera-
tion of the engine, or the giving of signals, liability exists." Persons
are held to know and exercise care with reference also to the natural
appetites of animals. Therefore, if a railroad company places salt on
its track, it is liable for trespassing animals so lured there, and
killed by a passing train.''*

Sams — Human Nature,

Essentially the same principle applies with respect to human be-
ings. On the one hand, for example, the owner of things tempting
to children must exercise care to prevent the indulgence in their nat-
ural instincts from doing harm.''® Thus, if the owner of a turntable
leaves it unguarded and unprotected, he may be liable for damages

7 8 Leavitt v. Terre Haute & I. R. Co., 5 Ind. App. 513. 31 N. E. SCO, and 32
N. E. 860. Compare S^Ueck v. Lake Shore & M. S; Ry, Co., »3 Micb. S75,
oS N. W. 556, disUnguishing 58 Mich. 195, 24 N. W. 774.

7« Cahoon v. Chicago & N. W. Ry. Co., 85 Wis. 570, 55 N. W. 900; Louisville,
N. A. & C. Ry. Co. V. Stanger, 7 Ind. App. 179, 32 N. E. 209, and 34 N. E. 088.

'i Bittle V. Camden & A. R. Co. (N. J. Err. & App.) 28 Atl. 305; Akridge v.
Atlanta & W. P. R. Co., 90 Ga. 232, 16 S. E. 81; Carraher v. San Francisco
Bridge Co., 100 CaJ. 177, 34 Pac. 828; Philadelphia Traction Co. v. LIghtcap.
10 C. C. A. 46, 61 Fed. 762.

78 Burger v. St. Louis. K. & N. W. Ry. Co., 52 Mo. App. 119. And see what is
the difference between drawing an animal into a trap by his natural instinct,
which he could not resist, and putting him there by manual force. Per
Lord Ellenborongh, Townsend v. Wathen, 9 East, 277. Or of fowls killed by
poisoned meat, Johnson v. Patterson, 14 Conn. 1; Burger v. St Louis, K. &
N. Ry. Co., 52 Mo. App. 119. Further, as to spring guns and traps, see Hook-
er V. Miller, 37 Iowa, 013; Henry v. Dennis, 93 Ind. 452; Deane v. Clayton, 7
Taunt 489. However, on the theory that a defendant is not liable for conse-
quences unforeseen, and which a reasonable man would not have foreseen,
it was held in Richmond & D. R. Co. v. Yeamans, 90 Va. 752, 19 S. E. 787
(Lewis, P., dissenting), that where a horse backed into a train, whereby plain-
tiff was injured, defendant was not liable, although the horse was frightened
by the steam from the engine.

7» St Louis, V. & T. H. R. Co. v. Bell, 81 lU. 76, distinguished; City of
Ppkip V. MoMahon. 53 lU. App. 189, affirmed; Id.. 154 111. 141, 39 N. E. 484.

830 NEGLIGENCE, [Ch. 12

to a child consequent on such negligence.®* On the other hand, the
law recognizes the right to presume that men will act as persons
free from infirmity or defect of sense ordinarily do, in obedience to

80 A railway company is not required to make its land a safe playground
for children, nor is it an insurer of lives or limbs of young children who play
about its premises. When, however, it sets befoi'e such children a tempta-
tion which it believes, or has reason to believe, will lead them into danger,
it must use reasonable care to protect them from the danger to which they
are exposed. But even us to children strictly non sui juris, not more than
ordinary or reasonable care is required. What would be proper care In
any case must in general be a question for the jury upon all the circumstan-
ces of the case. KefiTe v. Milwaukee & St. P. R. Co., 21 Minn. 207-212. per
Young, J., approved Union Pac. Ry. Oo. v. McDonald, 152 U. S. 262, 14 Sup.
Ct. 619. As to the reversed opinion of the distrtct court, see 2 Cent. Law
J. 170. In Union Pac. Ry. Co. v. McDonald, 152 U. S. 2(J2, U Sup. Ct 619,
a child, without any knowledge of danger, ran onto burning slack, and was
injured. There was no fence around the slack, nor was there anything to
give warning of its dangerous condition. The place was such as would at-
tract interest and curiosity to paseorsby. Plaintiff recovered. Barrett v.
Southern Pac. Co., 91 Cal. 290, 27 Pac. 666. See cases accumulated in opinion,
—page 303,— and cases restricting or departing from this immediate line col-
lected on pages 298, 299. And, generally, see Nagle v. Missouri Pac. R. Co., 75
Mo. 653; Ilwaco Ry. & Nav. Co. v. Hendrick, 1 Wash. 446, 25 Pac. 335; Walsh
V. Fitchburg R. Co., 67 Hun, 604, 22 N. Y. Supp. 441, and 78 Hun, 1, 28 N.
Y. Supp. 1097; Railroad Co. v. Stort, 17 Wall. 657. Daniels v. New York
& N. E. R. Co., 154 Mass. 340, 28 N. E. 283; Wambaugh, Study of Cases, p.
261; note 33, Cent. Law J. 325; Ft. Worth & D. C. R. Co. v. Measles, 81 Tex.
474, 17 S. W. 124. But see Frost v. Eastern Ry. Co., 64 N. H. 220, 9 Atl. 790.
The railroad company is not bound to put in such fastenings as a child
could not displace. Kolsti v. Minneapolis & St. L. Ry. Co., 32 Minn. 133,
19 N. W. 655. The ordinary m-anner of fastening is proper matter for
consideration of the jury, but is not conclusive. Id.; Doyle v. St. Paul, M.
& M. R. Co., 42 Minn. 79, 43 N. W. 787. But not every fastening is suffi-
cient. O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 294, 45 N. W. 440.
If, however, a car on grade is chocked by bmke, set so that it takes two
boys to loosen the brake, the company is free from blame as matter of
law. Ilaesley v. Wincna & St. P. R. Co., 46 Minn. 233, 48 N. W. 1023. A
car with unfastened brakes, Gay v. Essex Electric St. R. Co., 159 Mass. 238, 34
N. E. 186. An unprotected cog wheel, Whirley v. Whiteraan, 1 Head (Tenn.)
610. Et vide Powers v. Harlow, 53 Mich. 507, 19 N. W. 257; Harriman v.
Pittsburgh, C. & St. L. Ry. Co., 45 Ohio St. 11, 12 N. E. 451. A culvert is
not a trap, Fredericks v. Illinois Cent. R. Co., 46 La. Ann. 1180, 15 South.
413; nor windows fastened in a building containing torpedoes, Slayton v.

Ch. 12] ESSENTIAL ELEMENTS. 831

the instinct of self-preservation, in the avoidance of danger; and it
is contributory negligence on the part of a person not to so act.**
Thus, ordinarily, an engineer has a right to presume that a person
on a track, who has abundant opportunitv to get off, will do so in
time to avoid being struck.®* But this is a question of fact, to be
determined by the jury in view of all circumstances, especially with
reference to notice as to peril and failure to exercise reasonable care
to avoid damages, on the part of the wrongdoers, after notice that in-
jury is probable.®' The law recognizes the right to rely on the exer-

Fremont, E. & M. V. R. Co., 40 Neb. 840, 59 N. W. 510; nor swinging
irate, reached by climbing over another, Chicago, K. & W. R. Co. v. Bockoven,
53 Kan. 279, 36 Pac. 322. Further cases where a child trespasser has been
held disentitled of his wrong because there was no "implied invitation":
Itatte V. Dawson, 50 Minn. 450, 52 N. W. 905. Compare NewdoU v. Young,
80 Hun, 3&4, 30 N. Y. Supp. 84; Greene v. Linton, 7 Misc. Rep. 272, 27 N. Y.
Supp. 891; Ilargreaves v. Deacon, 25 Mich. 1; O'Conner v. Illinois Cent. R.
Co., 44 La. Ann. 339, 10 South. 678; Hawley v. City of Atlantic (Iowa) 60 N.
W. 519; Talty v. City of Atiantic, Id. 516.

81 Slaughter v. liletropolitan St Ry. Co., 116 Mo. 269, 23 S. W. 760; Denver
Tramway Co. v. Reld, 4 Colo. App. 53, 35 Pac. 269.

82 Thus, an engineer, who saw intestate on the track, was justified in he-
lieving up to the last moment, in the absence of knowledge that intestate was
deaf or insane, that he would move out of the way. Norwood v. Raleigh &
G. R. Co., Ill N. C. 236, 16 S. E. 4. An engineer has a right to presume that
defendant, on a railroad bicycle, will get out of train's way, until proximity
mokes danger of accident probable. Railway Co. v. Hicks, 89 Tenn. 301, 17
S. W. 1036; Syme v. Richmond & D. R. Co., 113 N. C. 558, 18 S. E. 114; High
V. Carolina Cent. R. Co., 112 N. C. 385, 17 S. E. 79 (McAdoo v. Railroad Co.,
105 N. C. 140, 11 S. E. 316, followed; Deans v. Railroad Co., 107 N. C. 086,
12 S. E. 77; Bullock v. Raih-oad Co., 105 N. C. 180, 10 S. B. 988; Clark v.
Railroad Co., 109 N. C. 430, 14 S. B. 43, distinguished); France's Adm'r v.
Louisville & N. R. Co. (Ky.) 22 S. W. 851; Texas & P. R. Co., v. Roberts. 2
Tex. Civ. App. Ill, 20 S. W. 960; St. Ix)Uis & S. F. Ry. Co. v. Herrin, 6 Tex.
Civ. App. 718, .26 S. W. 425; Pittsburgh, C, C. & St. L. R. Co. v. Judd (Ind.
App.) 36 N. E. 775; Pennsylvania Co. v. Myers, 136 Ind. 242, 36 N. E. 32. So,
in the operation of street-car lines, as to crossings, see Christensen v. Union
Trunk Line, 6 Wash. 75, 32 Pac. 1018. And see Doyle v. West End St. Ry.
Co., 161 Mass. 533, 37 N. B. 741.

•> As to occupants In a covered wagon on a track: Hinkle v. Richmond & D.
R. Co., 109 N. C. 472, 13 S. E. 884. Et vide Doyle v. West End St. R. Co., 161
Mass. 533, 37 N. E. 741; Schmolze v. Chicago, M. & St. P. R. Co., 83 Wis. 659,
53 N. W. 743, and 54 N. W. 106; Hansen v. Chicago, M. & St P. R. Co., 83

832 NEGLIGENCE. [Ch. 12

cise of the care usual with men. '^We are entitled to count on the or-
dinary prudence of our fellow men until we have specific warning
to the contrary." **

261. No person is liable for damages incidentally occa-
sioned to another by the natural and beneficial use
of his own property, or things in his possession or
control, or of a franchise granted by the state, un-
less he be guilty —

(a) Of negligence resulting in damages, or

(b) Of creating or maintaining a nuisance, or

(c) Of producing damage consequent neither upon neg-

ligence nor nuisance, but upon the ownership, use,
custody, or control of some dangerous instrumen-
tality.

It has been seen that the maxim "sic utere tuo" is a generaliza-
tion which expresses the spirit of the law, and is too vague and un-
certain to be accepted as a proposition from which any specific de-
duction may be safely made.** However, the law recognizes the ap-
plication of the maxim to instrumentalities, especially if their nature
is calculated to do harm. No general formula of the result of this
application is likely to be complete or accurate. That of the black-
letter text is essentially in the language of Brown, J., in Cumberland
Telephone & Telegraph Co. v. United Electric By. Co.** It is defective,
conspicuously, in its failure to recognize the existence of the unset-
tled classes of cases in which uses of property become actionable

Wis. 631, 53 N. W. 909; Will v. West Side R. Co., 84 Wis. 42, 54 N. W. 30;
4 Bl. Comm, 192; Skelton v. London & N. W. R. Co., L. R. 2 O. P. 031; Pol.
Torts, p. 388.

8* Pol. Torts, p. 388, citing Daniel v. Metropolitan R. Co., L. R. 5 H. I.. 45;
Oee V. Railroad Co., L. R. 8 Q. B. 161; Adams v. Railway Co., L. R. 4 C. P. 739.

«5 Ante, c. 1.

80 42 Fed. 273. And see Clerk & L. Torts, 328. It would seem that perhaps
a more aociu'ate and complete statement would be that the exceptions to the
nonliability in the use of "one's own'* are four, viz.: (a) Neg:llgence, result-
ing In damage; (b) an actionable nuisance; (c) breach of duty of insuring
safety; (d) recognized malicious wrong.

Ch. 12] K^SEXTIAL EI.KMKXTS. 83.)

because of malice.* In discuHsing this general subject, a number of
«I)eoific classes of cases in which these questions have arisen will be
first considered, and the results of the cases thus set forth will be
afterwards briefly summarized.

Accumulations of Water.

In the celebrated case of Rvlands v. Fletcher ®^ the defendants,
owners of a mill, erected a reservoir, employing competent persons
to construct it. Under the land, the plaintiff, the lessee of mines,
worked up to a spot whera there were certain old passages of dis-
used mines. When the water was introduced into the reservoir, it
broke through some of the shafts, flowed through the old passage,
and flooded the plaintilTs mine. No care had been taken by tin*
engineer or contractor to block up the shafts. But, admitting that
the defendant was personally free from fault, he was held to be
responsible. Two views have been taken of this cas(^ One re-
gards it as laying down specifically the general proposition that
where persons, for their own purposes, bring on their lauds and col-
lect and keep anything likely to do mischief, if it escape, they are
insurers of safety, and that in such cases the happening of an acci-
dent creates a prima facie liability, which can be rebutted onl.v
by bringing it within a recognized exception,** and not by showing
merely unsuccessful diligence; and also as co-ordinating in the same
category the scattered classes of cases which never became amena-
ble to the test of due care under the circumstances.*® This would

♦ "MaUcious Wrongs," ante, 555.

»7 Fletcher v. Rylands, L. R. 1 Exch. 2«o; s. c, 4 Hnrl. & C. 2C>3: 12
.Turist (N. S.) (K)3; 14 Wkly. Rep. 71«); 14 Law T. (N. S.) 52:J; 35 Law .r.
Exch. 154; L. R. 3 H. L. 330; 8. c, 37 Law J. Exch. IGl; 19 Law T. (N. S.)
220; 8. c, in all the courts, 1 Thoiup. Neg. 2. And see Fletcher v. Sinitlu
I^ R, 7 Exch. 305, atnrmed in 2 App. Cas. 781; Humphries v. Cousins, 2 ('.
P. Div. 239; Crowhuret v. Amersham Burial Board, 4 Exch. Div. 5, 7 Ceut.
Law J. 4G5, 18 Alb. I^w J. 514.

8« See Blackburn, J.. Ct. Exch. Chamber.

8» In 7 Harv. Law Rev. 441^54, Mr. John H. AVigmore regards this sentence
of Mr. Justice Blackburn as "epochal in its consequences": "There does not
api)ear to be any difference In principle between the extent of the duty cast
on him who brings cattle on his land to keep them In, and the extent of the
duty Imposed on him who brings on his land water, tiltli, or stenches, or any
other thing which will, if It escape, naturally do damage, to prevent tlieir

"LAW OF TORTS— 53

834 NEGLIGENCE. [Ch. 12

seem to be the more generally accepted view.'® On the other
band, it has been treated, not as laying down the general law of in-
surance of safety, but as involving only a special rule respecting^
adjacent landowners."^ *^The defendants might lawfully have used
their close for any purpose for which it might, in the ordinary
course of the employment of land, be used; and if, in what I might
term the 'natural user* of that land, there had been any accumula-
tion of water either on the surface or underground, and if, by the
operation of the laws of nature, that accumulation of water had
passed off into the close occupied by the plaintiff, the plaintiff could
not have complained that the result had taken place." This doc-
trine of Rylands v. Fletcher has been followed in Minnesota,®' and in
Massachusetts.®' But in both states the tendency is to modify it.**

escaping and injuring his neighbor. • * * The duty is the same, and is lev
keep them in, at his peril."

»o 1 Am. Law Reg. & Uev. (N. S.) 07 (article by John B. Gest on "Natural
Use of Land"); Burbauk v. Bethel Steam Mill Co., 75 Me. 373-^382.

»i See opinion of Lord Chancellor Cairns, L. R. 3 H. L. 330-337; Carstaira
V. Taylor, L. R. (i Exch. 217. Further as to expression "Natural User of
I^nd," see Lord Blackburn in Wilson v. Waddell, 2 App. Cas. 95, and Brett
and Cotton, L. JJ., in West Cumberland Iron Co. v. Kenyon, L. R. 11 Ch.
78.S; Madras Ry. v. Zamindar, L. R. 1 Indian App. 385, per Sir R. P. Col-
lier.

oa Cahlll v. Kastman, 18 Minn. 324 (Gil. 292). And see St. Anthony Falls
Water-Power Co. v. Eastman, 20 Minn. 277 (Gil. 249).

»s Gray v. Harris, 107 Mass. 492. And see Gorham v. Gross, 125 Mass.
232. Other cases in which Rylands v. Fletcher has been considered will be
found collected In 1 Thomp. Neg. lix.

04 Cahin V. Eastman, 18 Minn. 324 (Gil. 292), followed in Knapheide v.
Kastiuan, 20 Minn. 479 (Gil. 432; this case was decided after and notwith>
standing liosee v. Buchanan, 51 N. Y. 47(»); Hannem v. Pence, 40 Minn. 131.
41 N. W. <r»7; Bcrgcr v. Minneapolis Gas-Light Co. (Minn.) 02 N. W. 33t5.
In this case. Start, C. J., limits the general statements in Cahill v. Eastman:
"We deem it proper, to prevent any misunderstanding, to say that this in-
struction—that eveiy person who, for his own 'profit, keeps on his premises
anything not naturally belonging there, which, if it e8cai>e therefrom, into
the premises of anotiier, does damage, is liable for all the consequences of
his act, without reference to the degree of <»are he maj' have exorcised to
prevent it from escaping— Is too broad; for it is only those things the natural
tendency of which is to become a nuisance, or to do mischief if they escape.

Ch. 12] KSSENTIAL ELEMENTS. 8^^5

The doctrine has also been recognized and approved in Canada,*'^
In New York it has been held to be in direct conflict with the
law as settled in this country. The rule is laid down in the case
of Livingston v. Adams,*" as follows: '*Wlien one builds a mill-
dam upon a proper model, and the work is w^ell and substantially
done, he is not liable to an action though it break away, in con-
sequence of which his neighbor's dam and mill below are de-
stroyed/' •' There is, of course, no dispute that if one negligently
builds or fails to properly repair and safely maintain a dam, and
it gives w-ay and injures those below, this is actionable negli-
gence.*® The doctrine of Rylands v. Fletcher has not been adopt-
ed in Pennsvlvania.**

Exceptions to Rule in Rylands v, Fletcher,

The severity of the rule of Rylands v. Fletcher led, if not to its
material modification,^ *° at least to the recognition of a number of
exceptions. Thus, in Madras Ry. Co. v. Zemindar of Carodenega-
nim,^** a zemindar (landowner) in India maintained an extensive
reservoir of water for the cultivation of a portion of his territory.
Notwithstanding all reasonable care to prevent the escape of t.h<'
water, the dam burst, and the water destroyed a railroad embank-

whioh the owner keeps at his peril." And see couunent on (""ork v. Blossom
in 8 Harv. Law Rev. 225.

0 6 Chandler Electric C^o. v. t^iller (1892) 21 Can. Sup. Ct. 337, in which
damages and injunction were allowed for discharge of steam from a station-
ary engine.

00 8 Cow. 17.J.

»T Earl, J., in Ijosee v. Buchanan, 51 N. Y. 47G. See Vanderwiele v. Taylor,
05 N. Y. 341. But see Mairs v. Manhattan Real Estate Ass'n, 89 N. Y. 49iy-
.^i04. Where there is neither negligence nor folly in doing a lawful aot, the
party cannot be charged with the consequences. Burroughs v. Housatouic
K. Co., 15 Conn. 124.

osPoUett V. Long. 56 N. Y. 200; Inhabitants of Shrewsbury v. Smith,
12 Cush. (Mass.) 177; Inhabitants of Brookfleld v. Walker, 100 Mass. 94.

»o Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 120, 0 All. 4.5:i.

100 In addition to the cases subsequently cited, see Cattle v. Stockton Wa-
terworks Co., L. R. 10 Q. B. 453.

101 L. R, 1 Indian App. 3(54. Cf. Frye v. Moor. 5;^ Me. 583.

836 NEGLIGENCE. [Ch. 12

inent. The landowner was held not liable, because the customary
law of India justified the maintenance of the reservoir, and the con-
sequent damage was held to be incident to an authorized act. It
was distinctly recognized in Rylands v. Fletcher that the person
answerable for damage done by the escape of water could "excuse
himself by showing that the escape was owing to the defendant's
fault, or, perhaps, that the escape was the consequence of vis
major or the act of (xod.'* A violent rainstorm was subsi^quently
held to be such an act of God; ^^^ and an accident caused by a rat
gnawing a hole in a water tank was held to be so due to vis major *®'
that no liability attached to the owner of the tank. And it would
seem that one would be excused whether the damage be produced
by vis major or the wrongful act of a third party in releasing water
stored in a reservoir.^***

Things of Weight

Whoever places a heavy substance in such a position that it is
likely to fall, by force of gravitation, to the damage of persons or
property, is liable, without further proof of negligence.^®" Thus,

102 Nichols V. Mai-sland, L. R. 10 Exch. 255, 2 Exch. Div. 1, 23 Wkly. Rep.
(593, 33 Law T. (N. S.) 2G5, 44 Law J. Exch. 134, 25 Wkly. Rep. 173, 35 Law
T. (N. S.) 725, 46 I^w J. Exch. 174; 8tone v. State, 138 N. Y. 124-127, 33 N.
E. 733 (in which was Involved a rainstonn which occniTed at the same time
as the one producing the Johnstown flood).

103 Carstairs v. Taylor, L. R. 6 Exch. 217, per KeUy, O. B. A railway com-
pany artificially raised the surface of their land, whereby the rain water fall-
ing on the land made Its way to and damaged the plaintiff's house. This was
held to disclose a goo<i cause of action. There is a distinction in i-egard to
the application of the maxim, "Sic utere tuo ut alienum non Ifedas," where
the iilaiutlff and defendant are adjacent ownei-s, and where they are only
occupiers of different floors in the same building. In the latter case, an ac-
tion will only He where negligence can be proved, (^arstairs v. Taylor, L. R.
U Exch. 217; Ross v. Fedden. L. R. 7 Q. B. mi.

104 Box V. Jubb, 72 Wkly. Rep. 415 (per KeUy, C. B.) L. R. 4 Exch. Div. 76,
41 Law T. (N. S.) 97, 48 Law J. Exch. (N. S.) 417; Vaughan v. Taff Vale R.
Co., 3 Hurl. ^. X. 743. 5 Hurl. & N. <»71>: Smith v. London, etc., Ry. Co., 4<)
Law J. C. r. 21 ; Jones v. Kostlnlog Ry. Co.. L. R. 3 Q. B. 733, 37 I^w J. Q.

B. 214.
lo.-^Innes, Torts, 73; AVelfare v. London & B. R Co., L. R. 4 Q. B. 603,

38 Law J. Q. B. 24L

Ch. 12] KS.-KNTIAL KI.EMKNTS. H'i?

where an employ^ repairing a building let fall a chisel, which struck
a person working on the sidewalk below, it was held that this estab-
lislied a prima facie case of negligence on the part of the employ^.
It was presumed that the chisel was dropped btH*ause of his negli-
gence.^ °' Where, however, the material which drops falls into the
interior of the building, the law does not imply an obligation to pro-
tect persons in the space below, if it does not appear that their pres-
ence was expected.^**^ On the same principle, one who maintains
a heavy sign over a sidewalk in a frequented part of the city is pre-
sumptively negligent, in the absence of proof that it happened out
of the ordinary course, if it falls and damages a passer-by.^'** Lia-
bility for an overhanging sign has also been regarded from the

106 Dixon V. Phms, 08 Cal. 3S4, 31 Pac. 931. and 33 Pac. 2r>8; Goll v. Man-
hattan Ry. Co., 125 N. Y. 714. 20 N. E. ITyiU Anderson v. Manhattan El. U.
Co., 1 Misc. Rep. 504, 21 N. Y. Supp. 1; Broolcs v. Kings County El. R. Co.,
4 Misc. Rep. 288, 23 N. Y. Snpp. 1031. As to dropping refuse or things of
weight, see Hogan v. Manhattan Ry. Co., 6 Misc. Rep. 295, 2G X. Y. Supp.
792; Treanor t. Manhattan Ry. Co., 28 Abb. N. C. 47, IG N. Y. Supp. 5;j(i.
Negligence in hoisting safe in public thoroughfare. Spokane Truck & Dray
Co. V. Hoefer, 2 Wash. St. 45, 25 Pac. 1072. Piling lumber in street so care-
4e6sl/ and iiisecurely that a large stick of timber fell off, to plahitiff's dam-
age. Holly V. Bennett, 46 Minn. .'WO, 49 N. W. 189. Cf. Hulse v. New York,
O. & W. R. Co., 71 Hun, 40, 24 N. Y. Supp. 512. And, generally, see
Kearney v. London B. & S. C. Ry. Co., L. R. 5 Q. B. 411, L. R. 6 Q. B.
759; Byrne v. Boadle, 2 Hurl. & C. 722. A high degree of care must be ex-
ercised by an electric railway company with respect to the iron fonuing part
of its overhead apparatus. The happening of an accident with re8i)ect to it
justifies the jury in finding negligence. Uggla v. West End St. Ry. Co., 100
Mass. 351, 35 N. E. 1120.

107 Angus V. Lee, 40 111. App. 304. Cf. McCauley v. Noivross, 155 Muss.
584, 30 N. E. 464, and cases collected on page 587; Emery v. Minneapolis In-
dustrial Exposition, 56 Mhm. 460, 57 N. W. 1132.

108 Railway Co. v. Hopkins, 54 Ark. 209, 15 S. W. 610, citing Morris v. Sti-o-
bel & Wilken Co., 81 Ilun, 1, 30 N. Y. Supp. 571. Et vide Parker, J., dissent-
ing; Mullen V. St. John, 57 N. Y. 567; Kearney v. London B. & S. C. Ry.
Co., L. R. 6 Q. B. 759, 10 Cent. Law J. 261. Ante, p. 231, '^Independent
Contractor." A municipal cori>oration has also been held liable for awn-
ings over street. Bohen v. City of Waseca, 32 Minn. 170, 19 N. W. 730;
Drake v. Lowell, 13 Mete. (Mass.) 292; Day v. Mllford, 5 Allen. 98. As to
Joint tort feasors, owner and city, see Jessen v. Sweigert, 66 Cal. 182, 4 Pac.
1188; City of Lowell v. Glidden, 159 Mass 317. 34 N. E. 459 (in which lia-

888 NEGLIGENCE. [Ch. 12

point of view of nuisance, independent of negligence.*** Where a
roof is so constructed that water, snow, and ice which collect upon it
from natural causes will, in the ordinary course of things, fall upon
an adjoining highway, or upon a neighbor's land, the owmer of the
building is liable for consequent damages.*** This would not be a
question of reasonable care and diligence in the management of
such roof, but of the right to erect and maintain it at all in that
shape. It would not avail the owner to say that he did all he could
to prevent the consequences. He had no right to build it in that
way. His act was an attempt to extend his right as proprietor be-
yond the limits of his own property, at the expense of the safety
of the traveling public. He was bound, at his peril, to keep the ice
and snow that collected on the roof within his own limits; and, if
the shape of his roof was such as necessarily and naturally threw
it upon the street, he was responsible for all damages, prt^cisely as
if h(^ had, under the same circumstances, thrown it upon the prem-
ises of the adjacent owner.***

biUty is baaed on the theory of ouisanee). It has, however, been held that a
city Is not Uable for defectively hung signs. Hewlson v. City of New Ha-
ven, .37 Conn. 475; Taylor v. Peckham, 8 R; I. 'M\).
100 Wood. Nuls. ^ 90, and oases cited.

110 Ordinarily, the occupier, and not the owner, of the premises Is liable
for damages done because of their defective or dangerous condition. This
applies to fall of snow from a roof, if it does not appear that the tenant
might not, by the use of reasonable care, have prevented the accident. Clif-
foi-d V. Atlantic Cotton Mills, 140 Mass. 47. 15 N. E. 84. Cf. Caldwell v.
Sladc. l.KJ Mass. »4, 80 N. K. 87.

111 Mitchell, J., in Hannem v. Pence, 40 Minn. 127, 41 N. W. (>57, citing,
inter alia, Cahlll v. Eastman, 18 Minn. :V24 ((ill. 21)2); Smethurst v. Barton
Square Ind. Cong. Church, 148 Mass. 201, 19 N. K. 387. Perhaps the best lUu»-
tratiou that can bo found of the identity of liability for nuisance and for
breach of duty to insure safety is the celebrated case of Shipley v. Fifty As-
sociates. In the first report of this case (101 Mass. 251) the reasoning of the
court turns largely on the theorj' of nuisance (page 254). However, In both
this and a subsequent report (100 Mass. 194), the case Is sustained essentially
on the theory of Ry lands v. Fletcher. The cases in which such a roof has
l)een regarded a nuisance will be found in Wood, Nuls. 275. And see Shep-
ard V. Creamer, 100 Mass. 490, 30 N. E. 475; Bryne v. Boadle, 2 Hurl. & C.
722. That liability for such a roof depends on negligence, vide (Tariaud v.
Towne, 55 N. H. 55,

•Ch. 12] ESSENTIAL ELEMENTS. 839

The ownep of any stnictnre, as a building,*** a wall,"' an ele-
vated road,*** a lumber pile,**" is bound to take reasonable care
that it is kept in a proper condition, so it shall not fall into a street
or highway and injure persons lawfully there, and the fact of dam-
age from the fall thereof makes out a prima facie case of negli-
i^ence.**' But further proof of negligence is necessary, to enable
persons to recover for injuries received while engaged in tearing
down a structure.**' The rule does not apply to the owner of ad-
jacent proj)erty injured by the fall of such structure.**^ When part
of a building falls without any apparent reason, the owner is not
i-elieved from liability to persons not in his employ **' by having used
<-are in his plans and the selection of architect and contractor. The
liabihty may be regarded as being based also on nuisance,**® or as
being a breach of duty to insure safety. In the leading case of

ii« Mullen V. St John, 57 N. Y. r>67. The owner of a building is not bound
to strengthen it for extraordinary emergencies, like throwing large quantities
of water on merchandise therein, to checlt a fire, Woodruff v. Bowen, 43«
Ind. 431, 34 N. E. 1113; nor excessive storm, Norling v. Allee (City Ct. Broolc.)
13 N. Y. Supp. 791. But notice of dangerous condition is not essential to lln-
l)iUty. Tucker v. lUinols Cent. R. Co., 42 La. Ann. 114, 7 South. 124.

m

113 NcH'dheimer v. Alexander, 19 Can. Sup. Ct. 248; Simmons v. Everson.
124 N. Y. 319, 20 N. E. 911; O'Connor v. Andrews, 81 Tex. 28, IG S. W. 028;
rasqulni v. Lowry (Sup.) 18 N. Y. Supp, 284; Chapin v. Walsh, 37 lU. App.

r,20.

114 Volkmar v. Manhattan Ry. Co., 134 N. Y. 418, 31 N. E. 870.

118 Earl V. Crouch, 57 Hun, r)8(5, 10 N. Y. Supp. 8S2; Holly v. Bennett, 46
Minn. 380, 49 N. W. 189.

ii« As to negligence in construction of scaffold which fell while plalntilT
was working on defendant's house, see Kaspari v. Marsh, 74 Wis. 502, 4'\
N. W. 368; Burton v. Davis, 15 La. Ann. 448. "Buildings properly con-
structed do not fall without cause." Mullen v. St. John, 57 N. Y. 507-5(K).
The falling of a roof, in the absence of other evidence, is Itself sufficient evi-
dence of negligence. Bamowski v. Helson, 89 Mich. 523, 50 N. AV. 989. Ice-
house collapse, see Meier v. Morgan, 82 Wis. 289, 52 X. W. 174.

117 Weideman v. Tacoma Ry. & Motor Co., 7 Wash, 517, 35 Pac. 414.

118 City of Anderson v. East, 117 Ind. 120, 19 N. E. 720.

ii» As to liability to employ^, see Walton v. Brj^n Mawr Hotel Co., KJO Pa.
St 3. 28 Atl. 438.

120 Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 405, 41 X. W. 4tK).
Cf. (^outs V. Xeer, 70 Tex. 4r»8-474, 9 S. W. 40; Miles v. City of Worcester,
154 Mass. 511, 28 N. E. 076.

840 NEGLiciEXc;:. [Ch. 12

Gorham v. Gross,' ^* it was «ud that the only exceptions to the lia-
bility which have been judicially i-ecoj^nized are in cases of the
plaintiff's own fault, or of vis major, the act of God, or the acts of
third pi'rsons, which the owner had no reason to anticipate. And
in Cork v. Blossom '^^ it was held to be an absolute duty, which
rested on the owners of a chimney, to exercise proper care to pre-
vent its fall; and it was said that nothing short of actual exercise
of such care, or a fall of the chimney due to some one of the above-
(excepted causes, would excuse.

Fue.

Actions for mischief done by fire were brought in England under the
early common law, but were considered ''hard actions." '^^ The
liability in these cases corresjwnded to that in trespass. It was
enough to prove that fire caused the damage. Negligence on the

121 125 Mass. 232; Khron v. Brock, 144 Mass. 516, 11 N. E. 748. It is not
necessary that the owner should have had notice of the dangerous condition
of a building made unsafe by the act of treFpassers, which it was within liis
imwer to prevent. Tucker v. Illinois Cent. R. Co., 42 La. Ann. 114, 7 South.
124. Et vide Schachne v. Barnett (Super. N. Y.) 9 N. Y. Supp. 717; Gray
V. Boston (Gaslight Co.. 114 Mass. 149; Harry v. Ashton. 1 Q. B. Dlv. 314;
(JajBllght Coke Co. v. VostiT of St. Mary Abbott's, 15 (}. B. Div. 1.

122 Gorham v. (}ix)ss, 125 Mass. 232; Mahoney v. Libbey, 12^^ Mass. 20;
Meai-s V. Dole, 135 Mass. 508; Wilson v. New Bedford, 108 Mass. 201; Ball
V. Nye, 99 Mass. 582; Khron v. Brock, 144 Mass. 51(3, 11 N. E. 748; Moreland
V. Boston & P. K. K., 141 Mass. 31, (5 N. E. 225; Sniotlnirst v. Congregational
Churt-h. 148 Mass. 2(>1, 19 N. E. 387; Tarry v. Ashton, 1 Q. B. Div. 314;
Nltro Phospliate & O. C. M. Co. v. London & St. K. Do<ks Co.. 9 Ch. Div. 50;!;
Ijawrenoe v. Jenkins. L. U. 8 Q. B. 274; Benson v. Suarez. 28 How. Prac. 511;
Mullen v. St. John. 57 N. Y. 507; Gagg v. Vetter, 41 Ind. 228; Scott v. Bay,
3 Md. 431; Tiffin v. McCormack, 34 Ohio St. (•>;«; (:ooi)or v. Ilandall, 53 111.
24; (\^hill v. Eastman, 18 Minn. 324 (GU. 292); Hannem v. Pence, 40 Minn.
127, 41 N. W. 057; Phinizy v. City Council. 47 Ga. 200; G. B. & L. Ry. Co.
V. Eagles, 9 Colo. 544. 13 Pac. 090; Khmaird v. Standard Oil Co., 89 Ky. 41kS,

12 S. AV. 937.

123 Smith V. Frompton (KiOO) 2 Salk. 644; Pantam v. Isham (1702) 1 Salk. 19;
Allen V. Stephenson (1700) 1 Lutw. 33; Cudlip v. Uundall (1093) 4 Mod. 9;
Hicks V. Downllng (1097) 1 Salk. 13. Et vide 1 Rolle, Abr. tit. •*Act sur Case,"
p. 1; Vin. Abr. "Act for Fire," 0. In Turbervllle v. Stampc (101)8) 1 \A.
Itaym. 204, it was said as to a man who had started a lire In his flold: "He
made it, and must see It d<K*s no harm, and answer the damage If It does.
Every man must use his own so as not to hurt another. But If a sudden

Oh. 12J KSSKXTIAL KI.KMENTS. 841

part of the defendant was not essential.^^* The statute of Anne,^-'^
and subsequent enactments,^ ^® provided that no action should be
brought against any one in whose house or chamber or bam or sta-
ble, or any other building, or lands, fire should accidentally begin, or
any recompense be made by any such person for any damage occa-
sioned thereby. Since these statutes, liability for domestic fires has
been governed by principles of negligence, not of trespass.* ^^ If a
'domestic" fire began on a man's own premises,*^* by which those
of his neighbors were injured, the latter, in an action brought for
such injury, would not be bound to show, in the first instance, how
the fire began, but the presumption would be that it at*ose from the
negligence of some person in the house.* ^® The English courts, how-
ever, have gone so far as to hold that a nondomestic fire is so dan-
gerous an instrument as to attach liability, irrespective of negli-
gence. In the celebrated case of Jones v. Festiniog Ry. Co.,"® a
company not having express statutory ix)wei's given it to use loco-
motive steam engines was held liable at common law for damagj*
done to a haystack by fire caused by sparks fi'om one of the com

storm had arisen, while he could not stop it, was matter of evidence, and he
should have shown it." Construe note of reporter as to statute of Queen
Anne with 14 (ieo. III. c. 78. See FlUiter v. Phippard. 11 Q. B. ;U7.

124 Thus, where a man shooting at a bird hit liis own house, and set it on
Are, and the Are spread to the house of his neijrhl)ors and destroyed it, it was
held that the firer of the gun was resiwnsible for the damage, althou.s:h the
fire was occasioned rather by an accident or misadventure than by negligence.
Anon., Cro. Eliz. 10. See 1 Rolle. Abr. '*Act. sur Case," B.

i2»0 Anne, c. 31, § (57. As to whether this is part of tlie common law of
the I'nited States, see Spaulding v. Kailroad Co., 30 Wis. 110; Webl) v. Rail-
road (^o., 40 N. Y. 420; Bm-tt)n v. Smith, 13 Pet. (i:. S.) 4(U.

120 12 Geo. III. c. 73; 14 Geo. III. c. 78, especially section 86.

12T Filliter v. Phippard, 11 Q. B. 357; Vaughan v. Menlove, 3 Bing. X. C.
468. This case was thought by Teudall, C. J., to be of first imprt»ssion, but by
Park. J., to be in principle like Tuberville v. Stampe, 12 Mod. 152. The nuister
is not responsible for his servant's independent wrong in starting a fire.
WiUiams v. Jones, 3 Hurl. & i\ 250; McKenzie v. ^IcLeod, 10 Bing. ;^5.

12 8 Filliter V. Phippard, 11 Q. B. 347. construing 14 Geo. HI. c. 78, § 80.

129 Lord Tenterden in Becquet v. MacCarthy, 2 Bam. & Adol. 1)58, Et vide
Taylor v. Stendall, 7 Q. B. (534.

130 (18G8) L. R. 3 Q. B. 733; PoweH v. Fall. 5 Q. B. Div. 597; Sadler v.
South Staffordshire & B. D. S. T. Co. (1880) 23 Q. B. Div. 17; Pol. Torts, §J
407-409; Clerk & L. Torts, 337, 338.

842 NEGLIGENCE. [Ch. 12

pany's engines, although negligence was negatived. This was sus-
tained expressly on the theory that at common law the company
was bound to keep its engines from doing injury, in accordance
with the theory of Rvlands v. Fletcher.

In the United States, fire is recognized as a necessary agent in
common use in life, and from damage consequent to its employ-
ment, under ordinary circumstances, negligence or wrong is not nec-
essarily inferable, but it may be so used as to make a person using it
guilty of a tortious act.^'* In other words, destruction of property
by fire does not raise a presumption of negligence, but negligence
must ordinarily be alleged and proved. "Negligence," under such
circumstances, is a relative term, and denotes the degree of caution

181 Cark V. Foot, 8 Johns. (N. Y.) 329; Dewey v. Leonard, 14 Minn. 153 (Gil.
120). Compare Krlppner v. Blebl, 28 Minn. 130, 9 N. W. 071, with St. Louis,
A. & T. Ry. Co. V. McKinsey, 78 Tex. 238, 14 S. W. 045; Bachelder v. Heagan,
18 Me. 32, with Brummlt v. Furness, 1 Ind. App. 401, 27 N. E. G50; Jesperson
V. Philips, 40 Minn. 147, 48 N. W. 770; Barnard v. Poor, 21 Pick. (Mass.) 378.
The courts incline to rule strictly upon the liability of masters for the acts of
their servants in kindling and guarding fires in buildings. Compare Arm-
strong V. Cooley, 10 III, 509; McKenzie v. Mcl>ood, 10 Bing. 385; Williams v.
Jones, 3 Hurl. & C. 250-002; Wood v. Railway Co.. 51 Wis. 11¥5, 8 N. W. 214.
As to liability of tenant at will, see Lothi\)p v. Thayer, 138 Mass. 400; Wright
V. Lothrop, 149 Mass. 3a">, 21 N. E. 903; Ward v. Railway Co., 29 Wis. 144;
Read v. Morse, 34 Wis. 315. Compare Moe v. Job, 1 N. D. 140, 45 N. W. 700.
Louisville, N. A. & C. Ry. Co. v. Nitsche, 120 Ind. 229, 20 N. E. 51, holding
that where a railroad company, in a season of great drought, sets a fire on tlie
right of way, which extends over beds of turf or peat, the same material form-
ing the surface of the body of adjoining land, it is guilty of a positive wrong,
and not of mere negligence, and is liable for loss resulting to adjacent ownei-s.
So in Fahn v. Reichart, 8 Wis. 105, it was held that a party who sets tire to
logs and brush on his own land is not liable to an action though It be blown
on the land of his neighbor, and burn his bam, unless the party setting the
tire is also guilty of negligence or carelessness in setting it at that place and
time. Case v. Hobart, 25 Wis. C>54. Thus, where a man who sets and keejw
a fire on his own land is liable for injmy done by its direct communication to
his neighbor's land, whether through the air or through the ground, and
whether or not he might reasonably have anticipated the particular manner
and direction In which it was communicated, the probability that a fire set
under the circumstances would spread to the plaintiff's land is Inadmissible
to disapprove negligence. Higgins v. Dewey, 107 Mass. 494; Lothrop v. Thay-
er, 128 Ma^. 400. Compare Vaughan v. Menlove, 3 Blug. N. C. 40S. And see
Adams v. Young (Ohio) 4 N. E. 599.

I'll 12] ESSKNTIAL KI.EMKNT8. 843

which woald be exercised by a person of ordinary prudence under
the peculiar circumstances of each case. The common-law rule has
been generally changed by statute.^'*

Where, in addition to the fact that a fire caused damage, circum-
stajices are also shown which ordinarily would cause the fire
to spread to other property, such evidence makes out a prima facie
case of negligence.^'* Negligently guarding *** or leaving a fire
is a tortious act, which will attach liability.*'**^ Hence, where th<»
fire is lawful, the burden is on the plaintiff to prove negligence,*"**
but it is otherwise as to unlawful fires."^

In the pursuance of legal authority, one may cause damage by
fire without liability. Such damage would be incident to an au-
thorized act. The thing itself is not to be regarded as a part of
the instnmientality, but as something for which the state has

182 Roberaon v. Klrby, 7 Jones (N. C.) 477; (iarnler v. Porter, 90 Cal. 105,
27 Pac 55; Armstrong v. Cooley. 10 lU. .^09; Diinlcavy v. Stdckwell. 45 III.
App. 230; Galvin v. Giialala MIU Co., 98 Cal. 2('>8, 33 Pac. i)l\\ Lamb v. Sloan.
94 N. C. 534; Finley v. Langston, 12 Mo. 120; Russell v. Reagan, 34 Mo. App.
242; Kahle v. Hobein, 30 Mo. App. 472; Sanssy v. Railroad Co., 22 Fla. 327;
Thobum v. Campbell, 80 Iowa, 338. 45 N. W. 7(»9.

1*3 The state of the weather is a circumstance to be considered. Needhani
V. King, 95 Mich. 303, 54 N. W. 891.. The location (e. g. of a brewery In a
city) tends to determine the degree of care. Gagg v. Vetter, 41 Ind. 328.
That a box was soaked in oil, Perry v. Smith, 150 Mass. 340, 31 N. E. 9. And,
generally, see HIggins v. Dewey, 107 Mass. 494; Perley v. Eastern R. Co.,
98 Mass. 414; Calkins v. Barger, 44 Barb. (N. Y.) 424; Haulon v. Ingram,
3 Iowa, 81; Miller v. Martin, 16 Mo. 508; John Mouat Lumber Co. v. Wil-
more, 15 Colo. 130. 25 Pac. 550.

134 Hewey v. Nourse, 54 Me. 257; Hauch v. Heraandez, 41 La. Ann. 992, 0

South. 783.

135 Hewey v. Nourse. 54 Me. 257. Vide Read v. Pennsylvania R. Co.,
44 N. J. Law, 280; Bachelder v. Heagiin, 18 Me. 32; Clelaud v. Thornton, 43
CaL 437; Barnard v. Poor, 21 Pick. (Mass.) 378; Tourtellot v. Rosebix)ok.
11 Mete. (Mass.) 460.

136 Gregory v. I^ayton, 36 S. C. 93, 15 S. E. 352; Loeber v. Roberts (Super.
N. Y.) 17 N. Y. Supp. 378; Montgomery v. Booming Co., 88 Mich. («3, 50 N.
W. 729; McNally v. Cohvell. 91 Mich. 527, 52 N. AV. 70. As to duty to pro-
vide means of extinguishing fire in a lumber mill, I'aulej' v. l^mtern C'o.,
131 N. Y. 90, 29 N. E. 999, to the effect that, at common law, the owner of
a building not peculiarly exposed to the danger of tire is not bound to adoi)t
extra or unusual precaution for the escape of occupants in the case of fire.

137 AVhart. Xeg. § 8i»7.

844 NEGLIGEXCE. [Cll. i2

made itself responsible, until there is, on the part of the person
keeping and using it, some conduct independent of the mere keep-
ing or using it in the ordinary course, to which the damage can
be traced.^ ^^ Thus, if sparks from a passing locomotive set fire
to a haystack, the railway company is not to be held resi)onsible if
it has taken all reasonable care in the construction and use of
the engine.' ^° The railroad company must exercise care prox)or-
tionate to the danger, in favor of the public, to as great an extent
as in favor of its patrons/*® Carelessness in the operation of, or
defects in, the engine, may constitute actionable negligence, and
may be inferi'ed from circumstances; as the emission of an un-
usual quantity of sparks, or coals of an unusual size,^** running at

13 8 innes. Torts, 76; Kinp) v. Pease, 4 Barn. & Adol. 30 (see Queen v. Brad-
ford Xav. Co., 34 L. J. Q. B. 191); King v. Morris & E. U. Co., 18 N. J. Eq.
397.

130 Jones V. Festlnloff Ry. Co., L. R. 3 Q. B. ISii; Metropolitan, etc., Dist.
V. Hin, L. R. G App. Cas. 193; NiU'o-Phosphate & O. C. M. Co. v. London,
etc., Co., 9 Ch. Div. 503; Gas Light & Coke Co. v. Vestrj' of St. Mary Abbott's,
15 Q. B. Div. 1, 54 L. J. Q. B. 414; Madras Ry. Co. v. Zemindar of Carvaten-
agarum, L. R. Indian App. 364. But see Powell v. Fall, 5 Q. B. Div.
597, where it was held that defendant, operating a steam traction engine in
accordance with statute, without negligience started a Are, damaging plain-
tiff, was liable, because the engine was a danger jus machine. Heuderson
V. IMilladelphlR & R. R. Co., 144 Pa. St 461, 22 Atl. 851; Vaughan v. Taffvale
R. Co., 3 Hurl. & N. 742, 5 Hiu:l. & N. 678.

140 BalK'ock V. Fitchburg R. Co., 67 Hun, 469, 22 N. Y. Supp. 449; Fischer
V. Bonner (Tex. Civ. App.) 22 S. AV. 755; Eddy v. Lafayette, 1 C. C. A. 441,
49 Fed. 807; Martin v. Texas & P. Ry. (^o.. 87 Tex. 117, 26 S. W. 1052. The
<langer Involved In the use of such dangerous machines as locomotives is so
great as to be said to re(iuire of a railroad company a higher degree of care
than is usually exercised by a prudent man about his own property. This
has been carried so far as to make proof of cause of fire a prima. facie case
of negligence. Illinois Cent. R. Co. v. Mills, 12 111. 407; Miller v. St. I/Ouis,
I. M. & S. Ry. Co., 90 Mo. 389, 2 S. W. 439; post, p. 845.

141 Cincinnati, L, St. L. & V. Ry. Co. v. Smock, laS Ind. 411, 33 N. E. 108:
Fllnn V. New York Cent. & H. R. R. Co., 67 Hun, 631, 22 N. Y. Supp. 473,
reviewing earlier New York cases; Wheeler v. New York Cent. & H. R. R.
Co., 67 Ilun,i»39,22 N. Y. Supp. ."icil ; Kui-z & Huttenlocher Ice Co. v. Milwaukee
^ N. R. Co., 84 AVis. 171, 53 N. W. 8.50. Compare Stacy v. Milwaukee, L.
S. & W. Ry. Co., 85 Wis. 237, 54 N. W. 779; Ho<kstedIer v. Dubuque & S.
C. R. Co., 88 Iowa, 23<>, 55 N. W. 74. Defendant may show the distance at
whl( li sparks emitted by engine kindled tire. Hinds v. Barton, 25 N. Y. 544.

Cll. 12] ESSENTIAL ELEMENTS. 845

an unla^i'ful rate of speed,' *^ or the production of other fires near
the same time.'*' But while the cases are essentially agreed that
recovery in such a case must be based on negligence'** and that
negligence may be shown by purely circumstantial evidence,'*"^
there is a direct conflict of authority as to whether the plaintiff
must prove negligence on the part of the defendant, or whether
the defendant must show that his engine was properly constructed,
equipped, and operated. Perhaps the prevailing opinion in Amer-
ica is that, if it be shown that the fire originated from the defend-
ant's engine, negligence on his part need not be proved.^*® Proof
of negligence, under such circumstances, -is made unnecessary^ by
statute in some states; in others, railroad companies are made
insurers against damage by flre.'*^

1*2 Martin v. Western Union R. Co., 23 Wis. 437; Lake Erie & W. R. Co. v.
MiddlecofP, 150 lU. 27, 37 N. E. 6450.

145 Smith V. Chicago, M. & St P. Ry. Co. (S. D.) 55 N. W. 717; Gnlf, C.
& S. F. R. Co. T. Johnson, 4 C. C. A. 477, 54 Fed. 474; Fllnn v. New Yorlj
Cent & H. R. R. Co., 67 Hun, 631, 22 N. Y. Supp. 473; Railway Co. v. Richard-
son, 91 U. S. 454, foUowed in Chicago, St. P., M. & O. R. Co. v. Gilbert, 3
C. C. A. 264, 52 Fed. 711; Northern Pac. R. Co. v. Lewis. 2 C. C. A. 446, 51
Fed. 658; Martin v. St. I^uls, I. M. & S. Ry. Co., 55 Ark. 510, 19 S. W. 314;
Campl)ell v. Missouri Pac. R. Co., 121 Mo. 340, 25 S. W. 936. But not evi-
dence as to fire caused sereral years before, Galveston, H. & S. A. Ry. Co.
▼. Rhelner (Tex. Civ. App.) 25 S. W. 971; nor other fire along the line of the
roa<I unless it is shown that defendant caused them, St. Louis & S. F. Ry.
Co. V. Jones, 59 Ark. 105, 26 S. W^. 595; or using wood in a coal-burning en-
gine may be negligence, Briggs v. New York Cent. R. Co., 72 N. Y. 26; but
evidence of what other engines, handled by other engineers, did on other
occasions, is immaterial, Trlbette v. Illinois Cent. R. Co., 71 Miss. 212, 13

South. 899.

1*4 Burroughs v. Housatonic R. Co., 15 Conn. 124; Mi^sslssippi Home Ins. Co.
V. Louisville, N. O. & T. R. Co., 70 Miss. 119, 12 South, 156; Inuian v. Elber-
ton Air-Line R. Co., 90 Ga. 063, 16 S. E. 958; Day v. H. C. Akeley Luml)er
Co., 54 Minn. 522, 56 N. W. 243.

146 Union Pac. R. Co. v. Keller, 36 Neb. 189, .j4 N. W. 420; Kurz & Hutten-
locher Ice Co. v. Milwaukee & N. R. Co., 53 N. W. 850, 84 Wis. 171; Stacy v.
Milwaukee, K S. & W. Ry. Co.. 54 N. W. 779. 85 Wis. 2;i7. Plaintiflf mar
show the distance at which sparks emitted by the engine kindled fires. Hinds
T. Barton, 25 N. Y. 544.

146 The cases on this point are classified by states In 8 Am. & Eng. Enc
Law, 9. 10; Spauldlng v. Chicago & N. Ry. Co., 30 Wis. 110-121.

147 Connecticut, Martin v. New York & N. B. li. Co., 62 Conn. 331, 25 AtL

846 NKGLIGENCE. [Ch. 12

Where a railway company starts a fire on its own premises, di-
rectly, and not by sparks, it is liable as any other individual might
be, without reference to statutory privileges.*** On the same
principle, if it should allow combustibles to be or accumulate on
its right of way in such quantities, at such places and during such
seasons, as render it liable to be ignited and cause damage to ad-
jacent property, negligence may be imputed to it; and the fact
that fire is communicated by a passing locomotive is prima facie
evidence of negligence.**® Its subsequent diligence in attempting
to prevent the spread of the fire is no excuse.*'®

2;i0; Colorado, Denver & R. G. R. Co. v. Morton, 3 Colo. App. 42, 32 Pac. 345
(et vide Union Par. Co. v. Aslvew. 2 Colo. App. 159, 29 Pac. 103); Denver & R.
(;. R. Co. V. De Graff, 2 Colo. App. 42, 21) Pac. 604; Michigan, Hagan v. Chi-
cago, D. & C, G. T. J. R. Co.. m Mich. G15, 49 N. W. 509; South Carolina, Mo-
bile Ins. C^o. V. Columbia & G. R. Co. (S. C.) 19 S. E. 858; Hunter v. Columbia,
N. & L. R. Co. (S. C.) 19 S. E. 197 (liability absolute); Massachusetts, Lyman v.
Boston & W. R. Co., 4 Cush. 288 (compare Bassett v. Connecticut River R. Co..
145 Mass. 129, 13 N. E. 370); Illinois. Chicago & N. R. Co. v. McCahill, 50 111.
28; Missouri, Mathews v. St. Louis & S. F. Ry. Co., 121 Mo. 298, 24 S. W. 591
(liability absolute); New Hampshire, Rowell v. Railway Co., 57 N. H. 132;
Maine, Steams v. Atlantic & St L. Ry. Co., 40 Me. 95; Maryland, Baltimore
& O. R. Co. V. Dorsey, 37 Md. 19; Wisconsin, Spaulding v. Chicago & N. R. Co.,
:I0 Wis. 110; Montana, Spencer v. Montana Cent. R. Co., 11 Mont. 104, 27 Pac.
081; Kentucky (statute as to spark arrester), Louisville & N. R. Co. v. Tay-
lor, 92 Ky. 55, 17 S. W. 198; Kentucky Cent. R. Co. v. Barrow, S.) Ky. 038, 20
S. W. 1()5. As to Rev. St. U. S. § 4470, see Cheboygan Lumber Co. v. Delta
Trnnsp. Co., 100 ^Ii( h. 10, 58 N. W. (>i0; Pierce, R. R. 437, 438; 2 Shear. & R.
Neg. §§ 070. 077; Cooley, Torts (2d Ed.) 703.

148 Louisville, N. A. & C. R. Co. v. Nitsche, 120 Ind. 229, 20 N. E. 51. Fire
set by section men. Gould v. Northeni Pac. R. Co., 50 Minn. 510, 52 N. W. 924.

i*» Eddy V. Lafayette. 1 C. C. A. 441. 49 Fed. 807; Black v. Aberdeen & W. E.
R. Co., 20 S. E. 713; Smith v. London & S. W. Ry. Co., L. R. 5 C. P. 98; Gordon
V. Grand Rapids & I. R. Co. (Mich.) 01 N. W. 549; Innes, Torts. 77; Chicago, St.
L. & P. R. Co. V. Williams, 131 Ind. 30, 30 N. E. 090. An allegation tiiat en-
gine from which the coal was dropped or thrown was improperly constiiicted
or driven is not, under such circumstances, necessar3^ Delaware, L. & W. R.
Co. V. Salmon, 39 N. .T. Law, 299. Combustibles may be grass or bnish.
(Jeuung V. New York & N. E. R. Co., 00 Hun, a'i2. 21 N. Y. Supp. 97; St.
Louis & S. F. R. Co. v. Richardson, 47 Kan. 517, 28 Pac. lvS3; Terre Haute &
L. R. Co. V. Walsh (Ind. App.) 38 N. E. 534; San Antonio & A. P. Ry. Co. v.

iBo Chicago & E. R. Co. v. Ludington, 10 Ind. App. aUJ, aS X. E. 342.

Ch. 12] ESSENTIAL ELKMKNTS. 847

Explosives.

Liability for keeping an explosive has been regarded as based on
the theory of nuisance,^ '^ and as a breach of duty to insure safe-
ty.**' On the other hand, it is denied that responsibility can be at-
tached under such circumstances without fault, although it is rec-
ognized that the only exoneration is the exercise of the most
watchful care and most active diligence.**^* Accordingly, in the

Oakes (Tex. Civ. App.) 26 S. W. 1110; Pittsburgh, C. & St L. R. Co. v. Nel-
son, 51 Ind. 150; sawdust, Kurz & HuttenlOcher Ice Co. v. Milwaukee & N.
R. Co.. 81 Wis. 171, 53 N. W. 850; shlu^le roof, Cincinnati, N. O. & T. V. Ry. Co.
v. Barker, ^ Ky. 71, 21 S. W. 347; rubbish, Chicago & E. R. Co. v. House,
10 Ind. App. 134, 37 N. i:. 731; weeds. Gulf, C. & S. F. Ry. Co. v. Cusenberry,
5 Tex. Civ. App. 114, 26 S. W. 43; Texas & P. R. (^o. v. Gains (Tex. Civ.
App.) 26 S. W. 443. Generally, see Chicago. St. P., M. & (). R. Co. v. GU-
bert, 3 C. C. A. 264, 52 Fed. 711; Hansen v. Chicajjo, M. & St. P. R. Co., 3 S.

D. 31)4, 53 N. W. 769; Lake Erie & W. R. Co. v. Clark, 7 Ind. App. 155. 34 N.

E. 587; 2 Shear. & R. Ncj;. §§ 676-678, and citations. Montana statute, Spen-
cer V. Montana Cent. R. Co., 11 Mont. 164, 27 Pac. 681. As to combuf?tibleH
belonjdng to plaintifT placed near the rijfht of way, see Martin v. Texas & P.
Ry. Co. (Tex. Sup.) 26 S. W. 1052.

101 Thus, a pow^der niaj^azine may be per se a nuisance, and liability for
damage consequent upon it may attach without proof of negligence. ^*It
will be seen ♦ ♦ ♦ that whoever does an unlawful act, placing In jeopardy
the lives or property of others, does so at his peril, and that, if injury results
to others as a consequence of such an unlawful act, he must respond in dam-
ages. The rule is well-nigh (if not entirely) universal, that men must use
their own property and so exercise their own privileges that they do not de-
stroy or imperii the rights of othera; and this Is even so in the exercise of
rights not prohibited by law, and In the exercise of trades and business not
a nuisance per se. This rule Is so consistent with reason and justice that it
would seem no argument can add to its force, or the citation of authorities to
its justice*." Chicago, W. & V. Coal Co. v. Glass, 34 111. App. 364; Commlnge
V. Stevenson, 76 Tex. (^42, 13 S. W. .556. Compare Heeg v. Llcht, SO N. Y. 579,
reversing 16 Hun, 257; Myers v. Malcolm, 41 Am. Dec. 744; Cheatham v.
Shearon, 55 Am. Dec. 734.

152 Clerk & L. Torts, 3.'59. The storage of explosives is commonly regulated
by statute. Tlie English explosive act (1875) Is 38 Vict. c. 17. Vide Wright
V. Chicago & N. W. R. Co., 27 111. App. 2(M). Prohibition against transporta-
tion of explosives by vehicles engaged in interetate tratlic. U. S. v. Saul, 58
Fed. 763.

1B3 Hadley v. Cross, 34 Vt. 586. Et vide Kilpatrlck v. Richardson, 37 Neb.
731, 56 N. W. 481; Wellington v, Dover Kerosene Oil Co., 104 Mass. (>8;
Marshall v. Welwood, 38 N. J. Law, 339; Spencer v. Campb€»ll, 9 Watts &

848 NEGLIGENCE. [Ch. 12

celebrated Nitroglycerine Case,'®* where a package of nitroglycerine,
shipped by a carrier, who did not know its contents, exploded, it was
held that there was no want of ordinary care or skill on the part of the*
carrier, and that no liability attached. Tnder such circumstancejs,
the shipf)er who failed to give notice of the dangerous character of
the contents of the package is guilty of actionable negligence/ '^^
With respect to the use of explosives, as in blasting, there is a corre-
sponding confusion in the cases.' '^^ As to gas, while its manufac-
ture may produce damages recoverable as a nuisance without proof

S. 32; McAndrews v. Callerd, 42 N. J. Law, 189; Beaucliamp v. Saginaw M.
Co., W) Mich. 163, 15 N. W. G5; Colton v. Onderdonk. 09 Cal. 155, 10 Pac. 395;
AUison V. Western N. C. R. Co., 64 N. C. 383.

1B4 15 Wall. 524. The shipper of naphtha, described as "carlwn oil" in the
freight bill, in barrels marked "unsafe for Illuminating purposes," is liable
to the conductor of the train, who was Injured by an explosion, while In the
car where the naphtha was, with a lamp. If he did not know what was in the
barrel, although the carrier had been Informed of their contents. Standard
Oil Co. V. Tleraey (,1891) 92 Ky. 367, 17 S. W. 1025. Negligence on the part
of an oil company will not be inferred from the mere fact that burning oil fi*oni
its yard flowed down a pipe to a lighter loaded with petroleum at Its wharf,
<'a using the lighter to explode and destroy a vessel at an adjacent wharf.
Cosulich V. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259.

160 Boston & A. R. Co. v. Carney, 107 Mass. 568. But consigners of gun-
l»owder to be sold on commission are not liable for damages resulting from an
explosion of the powder while stored by the consignees, the doctrine of re-
spondeat superior having no application. Abrahams v. California Powder
Co. (N. M.) 23 Pac. 785. As to explosion by naphtha, see Lee v. Vacuum Oil
Co., 54 Hun, 156, 7 N. Y. Supp. 426. Damage from explosion from dynamite
magazine Is actionable only when negligence Is shown. Laflln & K. Powder
Co. V. Tearney (111. Sup.) 21 N. E. 516.

150 As to nuisance, see Brennan v. Schrelner (Super. N. Y.) 20 N. Y. Supp.
130; Wllsey v. Calhuian (Sup.) 21 N. Y. Supp. 65; Morgan v. Bowes, 62 Hun,
623, 17 N. Y. Supp. 22; Colton v. Onderdonk. 69 Cal. 155, 10 Pac. 395. As to
insurer of safety', see Hay v. Coho€»s Co., 2 X. Y. 159 (but see Benner v. Atlantic
Dredging Co., 134 N. Y. 15(5, 31 N. E. 328; Booth v. liailroad Co., 140 N. Y. 267,
35 N. K. 592, where nuisance is also refen-ed to; Uoemer v. Striker, 142 N. Y.
134, 36 N. E. 808; Prentice v. Village of WeUsvllle (Sup.) 21 N. Y. Supp. 820;
Atunro v. Pacific Coast Dredging & Reclamation Co., 84 Cal. 515. 24 Pac. 30:i;
Scott V. Bay, 3 Md. 431. As to negligence, see Cameron v. VjuidegriCf, 53 Ark.
381, 13 S. W. 1092; Harris v. Simon, 32 S. C. 593. 10 S. E. 1076. Where blasting
was done in a deep cut, so situated that covering could have been easily con-
structed so as to protect Intestate against danger, It was negligence not to pro-

Ch. 12] ESSENTIAL ELEMENTS. 849

of negligence,**^ the tendency of the courts is to base responsibility
for damages consequent upon its accumulation upon the theory of
negligence.^'^* The test is whether the defendants omitted to do
something which in the exercise of ordinary care and skill they
ought to have done, or whether they did any act dangerous in itself,
or under circumstances in which it was not consistent with ordinary
care and prudence that it should be done.*"' It is the duty of the
person who conducts it through pipes to exercise every reasonable
precaution suggested by experience and the known dangers of the

vide such structure. Blackwell v. Lynchburg & D. R. Co., Ill N. C. 151, IG S.
E. 12. If the locality on which a porson is blasting on his own laud is not such
as to render blasting a nuisance, he has been held liable for consequent dam-
ages only when he has been negligent. Klepsch v. Donald, 4 Wash. 430,*
30 Pac. 901; Id., 8 Wash. 162, 35 Pac. (521. Under such circumstances, how-
ever, liability will be attached only to wanton or willful negligence. Kmry
V. Roanoke Navigation & Water-Power Co.. Ill N. C. W, 16 S. B. 18. Blast-
ing may be a nuisance, but no damages will be awarded if fair warning is
given. Graetz v. McKenzle, 9 Wash. 606, 35 Pac. 377. The person engaged
in blasting is bound to talce proper precaution to guard against danger, as
by giving actual and timely notice before tiring the blast, or by effectually
covering it, Blaclcwell v. Lynchburg & D. R. Co., Ill N. C. 151, 16 S. E. 12;
Simmons v. McConnell's Adm'r, 86 Va. 4SM, 10 S. E. 838; Harris v. Simon.
32 S. C. 593. 10 S. E. 1076; especially where failure so to do violates a munici-
pal ordinance requiring such covering, Branuock v. Elmore, 114 Mo. 55, 21 S.
W. 451; Hare v. Mclntire, 82 Me. 240, 10 Atl. 453. The liability of munici-
pality for blasting in the highway depends upon negligence. City of Jolict
V. Harwood. 86 111. 110; City of Joliet v. Seward, 09 111. 267; Dean v.
Randolph, 132 Mass. 475; City of Logansport v. Dick, 70 Ind. 65; Murphy
V. Lowell, 128 Mass. 396.

i»7 Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18, 25 N. E. 246. Ante,
p. 771, "Nuisance.*'

iBsFinnegan v. Fall River Gas Works Co., 150 Mass. 311, 34 N. E. 523.
In Smith V. Boston Gaslight Go.» 120 Mass. 318, the court declined to inquire
whether, with respect to gas, defendant was bound at his peril not to permit
its escape. Et vide Hutchinson v. Boston Gaslight Co., 122 Mass. 210 222:
Holly V. Boston Gaslight Co., 8 Gi*ay (Mass.) 123. As to negligence in im-
perfectly cutting off supply of gas, Lanigan v. New York Gas Co., 71 N. Y.
29. Et vide Holden v. Liverpool Gas & Coke Co., 3 C. B. 1.

ift9 1 Thomp. Neg. p. 108, § 11, collecting cases; Blenl^iron v. Great Central
Gas Consumers' Co., 3 Law T. (N. S.) 317; 2 Fost. & F. 437, per Cockbum, C.
J.; Powers v. Boston Gaslight Co., 158 Mass. 257, 33 N. E. 523; Schmeer y.
Gaslight Co. of Syracuse (Sup.) 20 N. Y. Supp. 168.

UL V OF TORTS— 54

8")0 NEGL1GENC15. [Ch. 12

substance. "This would require, in the case of a gas company, not
only that its pipes and fittings should be of such material and work-
manship, and laid in the ground with such skill and care, as to pre-
vent the escape of gas therefrom when new, but that such system
of inspection should be maintained as would insure reasonable
promptness in the detection of all leaks that might occur from the
deterioration of the material of the pipes, or from any other cause
within the circumsi>ection of men of ordinary skill in the busi-
ness." '^^

In the celebrated case of Losee v. Buchanan ^®^ it was held that
an explosion of a boiler purchased from a reputable manufacturer,
in which there was an unknown latent defect, does not attach re-
,sponsibility for consequent damages. In such a case, the defend-
ant is bound to use the degree of care which ordinary prudence and
forethought would, under the circumstances, suggest; but the mere
fact of the accident is not proof of negligence.^** It is, however,

i«o Koelsch V. Philadelphia Co., 152 Pa, St. 355-364, 25 Atl. 522, and cases
cited; Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. B. 344; Schmeer v.
Gasll(a:ht Co. of Syracuse, 65 Hun, 378, 20 N. Y. Supp. 168; Mississinewa
Min. Co. V. Patton, 129 Ind. 472. 28 N. E. 1113; Reiser v. Mahanoy City Gas
Co., 143 Pa. St. 276, 22 Atl. 759; District of Columbia v. W. G. Co., 19 Wash.
Ijaw Rep. 354; Lannen v. Albany Gaslight Co., 44 N. Y. 459. And see Butcher
V. Providence Gas Co., 18 Alb. I^aw J. 372. Accordingly, a gas fitter, who in-
jures plaintiff by allowing gas to accumulate because of defective plumbing,
and which exploded when plaintiff struck a light In the room. Is liable for neg-
ligence. Pan-y v. Smith, 4 C. P. Div. 325. Burrows v. March Gas & Coke Co.,
L. R, 5 Exch. 67, 1j. R. 7 Bxch. 96, would seem to turn wholly upon contract.
The opinion of Cockburu, J., in Clark v. Chambers, 3 Q. B. Dlv. 327, 47 Taw J.
Q. B. 427; 38 Law T. (N. S.) 455. As to inspection of pipes, see Mose v. Hast-
ings & St. L. Gas Co., 4 Fost. & F. 324. And see Holden v. Liverpool Gas &
Coke Co., 3 C. B. 1. Generally, as to negligence of gas fitters, see Cleveland v.
Spier, 16 C. B. (N. S.) 399. As to natural gas, Mississinewa Min. Co. v. Patton*
129 Ind. 472, 28 N. E. 1113.

i«i 51 N. Y. 476, collating and discussing questions of trespass and negli-
gence, distinguishing Hay v. Cohoes Co., 2 N. Y. 159, affirming Fletcher v.
Ryland, L. R. 1 Exch. 265, and questing same case, L. R. 3 H. L. 330; Dol>-
bins V. Brown, 119 N. Y. 188, 23 N. E. 537; Marshall v. Welwood, 38 N. J.
T^w, 339, Chase, Lea^. Cas. 221; 1 Thomp. Neg. p. 112.

i«2 Reiss y. New York Steam Co., 128 N. Y. 103. 28 N. E. 24. Applied to
the blowing out of a bonnet allowing steam to escape, injuring plaintifit's
goods. Nor from the explosion of petroleum. Cosulich v. Standard Oil Co.,

^^i- 12] ESSENTIAL ELEMENTS. 851

insisted that a boiler explosion is prima facie evidence of negligence,
which maj be rebutted by showing due diligence.^®^ The explosion
of fireworks in the streets of a city has been regarded as a public
nuisance'rendering all persons concerned in doing the act or causing
it to be done liable for all damages proximately resulting there-
from.^'* The discharge of fireworks at suitable places, however,
when not prohibited by statute or municipal regulation, cannot be
said to be unlawful, and the burden is on the plaintiff to show such
circumstances as will make it culpable negligence.^'** Even where
the display is in a public highway, the better opinion seems to be
that a voluntary spectator assumes the risk of danger.^®'

But the plaintiff's case may be based on such a reckless disregard
of the rights of others as to entitle him to recover on mere proof of
cause and damage.^ '^ The user of firearms does not deal with them

122 N. Y. 118, 25 N. E. 259. As to liability of vendor to third person, see
Lfosee v. Clute, 51 N. Y. 494. A nuisance, moreover, is, properly spealiing,
something which worl&s harm while in integro; that is, in the condition in
which the defendant has put or left it. A reservoir or boiler, not being in
itself a nuisance, does not become such by bursting. Ball, Lead. Cas. 322.

i«3 Grimsley v. Hankins, 46 Fed. 400, Et vide Morris Co. v. Burgess, 44
111. App, 27. Where there are no eyewitnesses of the accident, it is proper
to show that deceased was a careful and competent engineer, to raise
the presumption that he was exercising due care at the time of the explosion.
Toledo, St. L. & K. C. R. Co. v. Bailey, 145 111. 159, 33 N. E. 1089; lUinois
Cent. R. Co. v. Thilips, 49 lU. 234, 55 Hi. 194; Spencer v. CampbeU, 9 Watts
& S. 32. By section 13 (5 Stat. 306) explosion of a boiler on a steamboat was
made prima facie evidence of neglect This is not limited in its application
to* actions by passengers, but extends to actions by others. Connolly v. Da-
vidson, 15 Minn. 519 (Gil. 428). Et vide McMahon v. Davidson, 12 Minn.
357 (Gil. 232); Fay v. Davidson, 13 Minn. 298 (Gil. 275).

i«* Jenne v. Sutton, 43 N. J., Law, 257. Explosion of firecracker under
plaintiff*s house, Conklin v. Thompson, 29 Barb. 218.

i«&Dowell V. Guthrie. 99 Mo. 653, 12 S. W. 900; Colvin v. Peabody, 155
Mass. 104, 29 N. E. 59; King v. Ford, 1 Starkie, 421. Compare Waixel v.
Harrison, 37 lU. App. 323; Cooley, Torts (2d Ed.) 705.

i«« Scanlon v. Wedger, 156 Mass. 402, 31 N. E. (U2, dissenting opinion of
Morton, J. (page 4(>4, 156 Mass., and page 642, 31 N. E.), and cases collected
on page 466, 156 Mass., and page 642, 31 N. E. If he be an infant, Bradley
V. Andrews, 51 Vt 530. What constitutes negligence in tiring will be neces-
sarily relative to time and place. Smith v. London & S. W. Ry. Co., L. R.
6 C. P. 14.

i«7 Scott V. Shepherd, 2 W. Bl. 892,— tiespass by throwing a squib.

^02 MCGI.KJKNC?:. [Ch. 12

at his peril. He is not an insarer against harm; but he is bound
to a standard of duty which is variable and shifts with the facts de-
veloped, whether, under the circumstances, a reasonable and proper
degree of care was exercised.^ °® Tlie early cases, howevei*, went so
far as to hold that an officer commanding a militia at regimental
drill was answerable for damages caused by firing guns in or near
a highway.^^^ Even a hunter may be liable for shooting another
person while hunting, although he did not know of his presence.^"®
It has been held, moreover, that to constitute a valid defense in such
cases the injury must be shown to have resulted from some con-
trolling, superior agency, and without the defendant's fault.^^*
The requirement at law that persons having in their custody insti*u-
ments of danger should keep them with the utmost care renders it
actionable negligence to place a loaded .gun in the hands of a per-
son incompetent to use it.^'^ But an air gun is not so obviously and
intrinsically dangerous as to render it negligence for a father to
place it in the hands of his infant son.*^*

Poisons.

In a number of cases persons have been held liable for dam-
ages consequent on the use, ownership, custody, or control of sub-
stances poisonous or offensive, essentially on theory of Bylands v.
Fletcher or on analogy to that of nuisance.^'* Thus, where one
planted yew trees on his own land, and permitted the branches

i«8 Morgan v. Cox, 22 Mo. 373; McCleary v. Frantz, 100 Pa. St 535, 2S
Atl. 929.

i«» Castle V. Duryee, *41 N. Y. 169; Moody v. Ward, 13 Mass. 299; Weaver
y. Ward, Hob. 134.

170 Hankins v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867; BizzeU v. Booker,
16 Ark. 308. Compare McCle&ry v. Frantz, supra.

171 Knott V. Wagner, 16 Lea (Teun.) 481, 1 S. W. 155.

172 Dixon V. BeU, 5 Maule & S. 198; Ball, Lead. Cas. 210; Bigelow, Lead.
Gas. 568. So one who sells gunpowder to an Inexperienced child is liable to
It for subsequent explosion. Carter v. Towne, 98 Mass. 567.

i7 3Chaddock v. Plummer, 88 Mich. 225, 50 N. W. 135, where boy was 9
years old; HaiTis v. Cameron, 81 Wis. 239, 51 N. W. 437, where boy was 11
years old. In the latter case the question of negligence on the part of the
father in making the purchase was held to be a question of law for the court
Compare Binford v. Johnston, 82 Ind. 426.

174 Pol. Torts, c. 12.

Ch. 12] KSSEiNTIAL ELEMENTS. 853

to overhang another's meadow, and horses running in the meadow
ate the branches and died, the owner of the trees was held lia-
ble.^'° So, where wire fencing decayed, and the pieces fell into
the adjoining pasture belonging to another person, and were eaten
by his cow, which died from the effects, the owner of the cow was
held entitled to damages.*^' So, a landlord has been held liable for
knowingly letting infected premises.^'^ Many cases on this subject
arise from sales of poisonous substances, not only as between ven-
dor and vendee, but also as between the vendor and third persons.
These cases will be subsequently considered.^ ^' Similar questions,
as has been seen, also arise in connection with the doctrine of fraud
and deceit^'*

Animals.

Whoever owns or keeps animals of a kind likely to do harm does
so at his peril, and is liable, on proof of damage, without further
proof of negligence.

"If they are such as are naturally mischievous, he shall answer
for hurt done by them without any notice; but, if they are of a tame
nature, there must be notice of the ill quality.'' ^•^

In the leading case. May v. Burdett,^®* a woman was bitten by a
monkey. Its owner, knowing its mischievous and ferocious nature,
waB held liable in case, without an averment of negligence or de-
left Crowhurst v. Amersham Burial Board, 4 Exch. Div. 5.

i7« Firth V. BowUng Iron CJo., 3 C. P. Dlv. 254; Durgin v. Kennett (N. H.)
29 Atl. 414. Further, as to poisons, see Callahan v. Wai-ne, 40 Mo. 132; post,
p. 900; Thomas v. Winchester, 6 N. Y. 397.

1T7 Cesar v. Kanita, 60 N. Y. 229. Of. Ballard v. Tomlinson, 54 Law J.
Ch. 454. In an action for personal Injuries, it appeared that plaintiff's intes-
tate fell on some ice which defendant had wrongfully allowed to accumulate
on the sidewalk, and was fatally injured by a large and very sharp knife which
he was carrying to use in his trade. The knife was wrapped In several clotli
garments, and tied with a string, and it appeared that decedent had carried
it in this maunor for several years. A witness for defendant ttvstitied that he
had warned decedent that it was dangerous to carry the knife as he did.
Held, that it could not be said aa a matter of law that decedent was negligent
McGoldrick v. New York Cent. & H. U. R. Co., 66 Hun, 629. 20 N. Y. Supp. 914.

ITS Post p. 906.

i7»Ante, p. 574, "Deceit."

180 Holt, C. J., in Mason v. Keeling. 12 Mod. 332; Holmes, Com. Law, 22.

i»i May V. Burdett, 9 Q. B. 101.

854 NEGLIGEXCK. [Ch. 12

fault on his part in securing or keeping the monkey. Here the
owner had actual knowledge of the vicious propensities of the ani-
mal. But, though he "have no particular notice that it did any such
thing before, yet if it be a beast that is ferae naturae, as a lion, a
bear,^*= a wolf,^*' yea, an ape or a monkey,^** if he get loose and do
harm to any person, the owner is liable to an action for the dam-
age." ^®° The tameness of the disposition of such an animal, how-
ever, may operate by way of mitigation of damages.***

As to animals domitae naturie, there is no distinction between the
case of an animal which breaks from the tameness of his nature and
becomes fierce and one who is ferae naturae, provided the owner has
k^owledga*®^ He is not liable for negligent failure to keep a do-
mestic animal, not known to be vicious, confined to his own premises,
except for consequences which may be anticipated because of its
well-known disposition and habits."* A part of the natural pro-
pensity of such an animal is to stray wherever its instinct leads it
Accordingly, there is, at common law, an absolute liability for all
damages consequent upon the gratification of such instinct.*** Such
damage includes, not only trespass on and injury to real estate, but
also injury to person or personal property. In an action for the

182 Marguet v. La Duke, 96 Mich. 590, 55 N. W. lOOG.

183 Manger v. Shipman, 30 Neb. 352, 46 N. W. 527.

184 May V. Burdett, 9 Q. B. 101.

18B 1 Halo, P. C. p. 430; May v. Burdett, 9 Q. B. 101; Jenkins v. Turner,
1 Ld. Kaym. 109; Mason v. Keeling, Id. 600. An elephant Is in the dangerous
class. Filbuin v. People's Palace & Aquarium Co., 25 Q. B. Dly. 258. As to
jiiiimals as nuisances, ante, p. 768, "Nuisance," note 132.

180 Besozzi v. Harris, 1 Fost. & P. 92. Et vide Worth v. Gllllng, L. R. 2

C. P. 1.

187 Ram, .Jackson v. Smithson, 5 Mees. & W. 563; a stallion, Hammond

V. Melton, 42 111. App. 186 (compare Knickerbocker Ice Co. v. De Hass, 37
lU. App. 195); a bull, Lettis v. Homing, 67 Hun, 627, 22 N. Y. Supp. 565, dis-
tinguishing early New York cases; a steer, Cuitfs v. Schossler, 14 Pa. Co. Ct
R. 600.

188 Klenberg v. Russell, 125 Ind. 532, 25 N. B. 596 (where a cow damaged
plaintiflf), collecting cases on page 5;U, 125 Ind., and page 596, 25 N. E.; Smith
V. Donohue, 45 N. J. Law, 548.

isn Cox V. Burbidge, 13 C. B. (N. S.) 480; Dewell v. Sanders, Cro. Jac. 490;
Hannam v. Mockett, 2 Bam. & G. 934; Myers v. Parker, 74 Hun, 129. 2 5 X.
Y. Supp. 308; North Pennsylvania R. Co. v. Rehman, 49 Pa. St. 101, reviewing
cases.

Oh. 12] KSSENTIAL ELEMENTS. 855

latter kind of injury, it is not neceBsary to allege and prove scienter
on the part of the owner where it is alleged or proved that the in-
jury was committed where the animal was negligently permitted by
such owner to trespass on the plaintiffs premises.* •* On the other
hand, if one be driving cattle through a street, and they stray and
do damage, his act has the authorization of law, and he is not liable
unless he has failed to exercise the care of a prudent man to pre-
vent harm,^^^ In the absence of knowledge of vicious propensities,
the owner is liable only, at common law,*®^ for damage caused by
the natural propensity of the animal; and this is to be determined
by a consideration of normal disposition. Thus, while it is natural
for horses to kick each other, it is not their ordinary nature to kick
human beings. Hence, where a horse strayed on a highway, and
kicked a child, the owner was not held liable, in the absence of
knowledge of the horse's vicious temper; ^•^ but if, although not vi-
cious, it has kicked another animal, he has been held liable.*®* If

i»o Van Leuven v. Lyke, 1 N. Y. 515; Marsh v. Hand, 120 N. Y. 315. 24 N.
E. 463; Burke v. Daley, 32 111. App. 326; Decker v. Gammon, 44 Me. 322. Gii
Am. Dec. 103, and authority cited; Malone v. Knowlton, 60 Hun, 585, 15 N.
Y. Supp. 506. If a bull break into an inclosure and gore a horse, the owner
of the bull is liable. Dolph v. Ferris, 7 Watts & S. 367; Lee v. Ryley, 18 C.
B. (N. S.) 722; EUls v. Loftus Iron Co., L. R. 10 C. P. 10.

i»i TlUett y. Ward, 10 Q. B. Div. 17; Moynahan v. Wheeler, 117 N. Y. 285,
22 N. E. 702. But see Meier v. Shrunk, 79 Iowa, 17, 44 N. W. 209. If defend-
ant admits, af ta: the injury, that it was careless to lead a bull, in the man-
ner in which his servant led it, through a street, this Justifies the Jury in find-
ing against him. Linnehan v. Sampson, 120 Mass. 506.

i»2As illustrations of statutory changes, Hussey v. King, 83 Me. 568, 22
Atl. 476; C5onway v. Grant, 88 Ga. 40, 13 S. E. 803.

i»8 Cox V. Burbidge, 13 C. B. (N. S.) 4t50-441.

194 Barnes v. Chapin, 4 Allen (Mass.) 444. So if an agister of cattle place
plaintiflTs horse in a field with a number of heifers, near a bull in adjoining
field, he may be liable for damage to the horse, although he did not know
that the buU was of mischievous disposition. Smith v. Cook, 1 Q. B. Div. 79.
In Oklahoma it is held that, unless the owner of a mule has knowledge of a
propensity on its part to attack colts, he is not liable for a colt killed by it
while nmning at large. Meegan v. McKay. 1 Okl. 59, 30 Pac. 232. Compai-e
Johanson v. Howells, 55 Minn. 61, 56 N. W. 460. Merely trying a horse of un-
sown disposition in a highway is no evidence of negligence, HauiTiiack v.
White, 11 C. B. (N. S.) 588; nor trying carriage horses in a double harness.
Holmes v. Mather, supm. But while known disi>ositiou of a horse may affect

856 . NEGLIGENCE. [Ch. 12

a dog be of a savage disposition, and accustomed to bite, the owner
or keeper*®'^ is liable only if he knows these facts; **• but if the
owner is aware of such viciousness, and permits the dog to run at
large, he is liable, without allegation or proof of negligence, for its
indulgence in the propensity to bite.^"^ The liability is the same if
the plaintiff be bitten while lawfully on the defendant's premises.^'®
There is probably a natural propensity in all dogs to chase and de-
stroy game, and to worry sheep and cattle.^'" As to what is notice

measure of care, this does not apply where a driver failed to use care to re-
lieve his horee, who was entangled in a harness, whereby he i-an away.
Wissler v. Walsh, IGo Pa. St 352, 30 Atl. 981.

195 Hornbein v. Blanchard, 4 Colo. App. 92, 35 Pac. 187; (Jarrison v. Barnes,
42 lU. App. 21; Whittemore v. Thomas, 153 Mass. 347. 20 N. E. 875; Galvin
V. Parker, 154 Mass. 346, 28 N. E. 244. But see Jennings v. D. G. Burton Co.,
73 Hun, 545, 2U N. Y. Supp. 151.

186 Warner v. Cliamberlain (Del. Super.) 30 Atl. 638, 7 Houst. 18; Robinson
V. Marino, 3 Wash. St. 434, 28 Pac. 752; Dockerty v. Hutson, 125 Ind. 102,
25 N. E. 144; Simpson v. Griggs, 58 Hun, 393, 12 N. Y. Supp. 162. As be-
tween master and servant, Auchmuty v. Ham, 1 Denio, 495. "An uncle who
permits a minor nephew, living with him, to keep a known vicious dog, is
liable for injuries to a child caused by it." Snyder v. Patterson, 162 Pa. St. 98,
28 Atl. 1006. A wife, living with her husband on premises owned by her is not
liable for injiu'ies caused by the bite of a vicious dog kept on such premises,
though Code, § 2345, provides that a married woman shall be alone liable for
her toils. Strouse v. Leipf, 101 Ala. 433, 14 South. 607. Compare Quilty v.
Battle, 1?^ N. Y. 201, 32 N. E. 47. As to directors of an almshouse, Sproat v.
Directors of Poor, 145 Pa, St. 59S, 23 Atl. 380; landlord and tenant. Garrison
V. Barnes, 42 111. App. 21. Compare Jennings v. D. G.* Burton Co., 73 Hun,
545, 26 N. Y. Supp. 151. The occupier of a place where a dog Is kept is, for
purposes under discussion, the owner of the dog,— in England, 28 & 29 Vict, c.
60; in Scotland, Camp. Neg. 53-55.

197 Twigg V. Ryland, 62 Md. 380; Harris v. Fisher, 115 N. 0. 318, 20 S. E.
461; State v. Remhoff (N. J. Sup.) 26 AU. 800; Bundschuh v. Mayer, 81 Hun,
111, 30 N. Y. Supp. 622.

108 Sylvester v. Maag, 155 Pa. St. 225, 26 Atl. 392; Jacoby v. Ockerhausen,
59 Hun, 019, 13 N. Y. Supp. 499; Melshelmw v. Sullivan, 1 Colo. App. 22. 27
Pac. 17.

180 Keed v. Edwards, 17 C. B. (N. S.) 245; Fleeming v. Orr, 2 Macq. 14.
Et vide Wright v. Pearson, L. R. 4 Q. B. 582; Smith v. Donohue, 49 N. J.
Law, 548-552, 10 Atl. 150; Murry v. Young, 12 Bush, liSl. As to statutory
regulation of dogjs killing live stock, Davis v. Town of Seymour, 59 Conn.
SSI, 21 Atl. 1004; Jones v. Town of Chester (N. H.) 29 Atl. 452; Jacobsmeyer

Ch. 12] KSSKNTIAL ELEMENTS. 857

of an unnatural, vicious propensity, the jury are to judge, in view of
all the circumstances; as, that the animal has attacked other per-
sons or animals, its general reputation in the neighborhood, and the
manner in which it is ordinarily restrained.^**® The law recognizes
that the habit of an animal is a continuous fact, to be shown by
proof of successive acts of a similar kind. Therefore proof of dis-
position before and after the injury is admissible. ^^^

Where an animal suffers from a contagious disease, which is likely

Y. Poggemoeller, 47 Mo. App. SCO; WeaUand v. Palmer, 2 Pa. Dist. R. 777;
Laws Wis. 1891, e. 218, p. 255; State v. Township Committee of Neptune, 52
N. J. Law, 487, 20 Atl. 61; dogs running at large, Nehr v. State, 35 Neb.
638, 53 N. W. 589; Jones v. Perry, 2 Esp. 482.

200 Fake v. Addicks, 45 Min>n. 37, 47 N. W. 450; Keenan v. Hayden, 39
Wis. 558; Linck v. Sclieffell, 32 111. App. 17; Turner v. Craighead, 83 Hun,
112, 31 N. Y. Supp. 3(59; Murry v. Young, 12 Bush, 337; Brice v. Bauer,
108 N. Y. 428. 15 N. E. 695; Meier v. Shrunk, 79 Iowa, 17, 44 N. W. 200.
And see 1 GreenL.Ev. § 107, Hahnke v. Frederich, 140 N. Y. 224, 35 N.
E. 487 (where a dog was usually kept chained and muzzled). So in Kessler
V. Lockwood, 62 Him, 619, 16 N. Y. Supp. 677; Robinson v. Marino, 3
Wash. St. 434, 28 Pac. 752. In Smith v. Pelah, 2 Strange, 1264, the chief
Justice ruled "that if a dog has once bit a man, and the o\^Tier thereof,
with notice, keeps the dog, and lets him go about or lie at his door, an
action lies at the suit of tlie person who is bit, though it happened by sucli
person's treading on the dog's toes, for it was owingi to his not hanging the
dog on the first notice, and the safety of the king's sulflect is not afterwards
to be endangered." Wood, Nuis. § 766; MuUer v. McKesson, 73 N, Y. 200,
201. In an action for injuries inflicted by a runaway team of defendant, the
vicious or dangerous character of the horses is a question for the jury, where
there is evidence that the horses had previously run away» and that defendant
knew it. Benoit v. Troy & L. R. Co., 77 Hun, 576, 28 N. Y. Supp. 1024. No-
tice of vlciousness of horse to superior hostler Is notice to street-railway com-
panies. McGarry v. New York & H. R. Co. (Super. N. Y.) 18 N. Y. Supp.
195. Generally, as to notice through servant, Baldwin v. Casella, L. R. 7
Exch. 325; Applebee v. Percy, L. R. 9 C. P. 647. And, generally, as to no-
tice. Worth V. Gilling, L. R. 2 C. P. 1; Gladman v. Johnson, 36 Law J. C.
P. 153; Jones v. Perry, 2 Esp. 482; Deck v. Dyson, 4 Camp. 198; Judge v.
Cox, 1 Starkle, 285.

201 Todd V. Rowley, 8 Allen, 51-58, per Bigelow, C. J.; Chamberlain v.
Enfield, 43 N. H. 356; Maggl v. Cutts, 123 Mass. 535; Keimou v. Gilmer,
131 U. S. 22, 9 Sup. Ct. 696. But see Cameron v. Bryan (Iowa) 50 N. W. 434;
Knickerbocker Ice Co. v. De Hass, 37 lU. App. 195; Worth v. Gilling, L. R. 2
C. P. L

SoS NEGLIGENCE. [Ch. 12

to affect other animals, its owner, keeper, or person having it in con-
trol 2®' is liable, at common law, for allowing it to escape, if he
knew or ought to have known of its diseased coudition.*^^ The
keeping of such animals is now largely regulated by statute.*®*

Things Dangerous because Put in Motion.

Where the instrument by which wrong is done is innocent in it-
self, and does harm only when it is started in motion, the liability
naturally depends upon the exercise of care proportioned to probable
harm. Thus, a coupling pin attached to a moving car,*®^ or a rope
dragged behind a moving vehicle,*"* a board thrown back from a

20S As to liability of railroad company communicating disease by shipping
infected cattle, see Pike v. Eddy, 53 Mo. App. 505; Grimes v. Eddy (Mo. Sup.)
27 S. W. 479; Furley v. Chicago, M. & St. P. Ry. Co. (Iowa) 57 N. W. 719.

208 Cooke V. Waring, 2 Hurl. & C. 332; State v. Fox (Md.) 29 Atl. 601 (a
leading case of sale of a glandered horse); St. Louis, I. M. & S. Ry. Co. T.
Goolsby, 58 Ark. 401, 24 S. W. 1071. There is no liability on warranty, in
iselling a glandered horse, in the absence of representations as to health, Hill
V. Balls, 2 Hurl. & N. 299; Mullett v. Mason, L. R. 1 C. P. 559; although lia-
bility may attach for fraud, Mullett v. Mason, supra. Texas fever! Claren-
don Land, Inv. & Agency Co. v. McClelland (Tex. Civ. App.) 21 S. W. 170
(reversed in 86 Tex. 179, 23 S. W. 576, 1100). Evidence that the fact that
native cattle, treading over the ground after Texas cattle, are liable to con-
tract Texas fever, is a matter of general notoriety does not show that defend-
ant company had knowledge of the fact. Grimes v. Eddy (Mo, Sup.) 27 S.
W, 479. As to hydrol)hobia communicated by a dog: French v. Wilkmson,
93 Mich. 322, 53 N. W. 530. Liability for sheep rot: Wilcox v. McCoy, 21
Ohio St. 655; HerricR v. Gary, 83 111. 85; Peterkin v. Martin, 30 La. Ann. 894.

204 As to English act, see 41 & 42 Vict. c. 74. Laws N. M. 1891, c. 62;
Laws Kan. 1891, c. 201, p. 346; Laws N. D. 1801, c. 125, p. 314; 26 Stat. c.
839, p. 414; Laws Tex. 1892, p. 11; Id. 1893, c. 56; Laws N. Y. 1892, p. 9S1,
Laws Nev. 1893, c. 44, p. 37. Et vide Miller v. Hortou, 152 Mass. 540, 26 ^.
E. 100; Pearson v. Zehr, 138 111. 48, 29 N. E. 854; Stryker v. Crane, tiS Neb.
690. 50 N. W. 1132; Furley v. Chicago. M. & St. P. Ry. Co. (Iowa) 57 N.
W. 719.

20 5 Doyle v. Chicago, St. P. & K. C. Ry. Co., 77 Iowa, 607, 42 N, W. 555.
Injury to plaintiff by stick of wood which fell or was thrown from passing
engine is prima facie due to defendant's negligence. Savannah, F. & W. R.
Co. V. Slater, 92 Ga. 391, 17 S. B. 350.

«06 Barnes v. Brown, 95 Mich. 576, 55 N. W. 439. Cf. McCaffrey V. Twen-
ty-Third St. Ry. Co., 47 Hun, 404, where it was held that no liability attaches
because of damage done by wire accluentally attached to axle of street car.

Cll. 12] ESSENTIAL ELEMENTS. 859

circular saw,^"^ a hammer in use,'®* a swinging sack,-®^ or a beer
barrel swung from a wagon turning suddenly from a car track,* *•
however harmless in themselves, will attach liability' if negligently
controlled. On the same principle, a bicycle is in itself an innocent
vehicle. It is entitled to the rights of the road (but not of the side-
walk) **^ equally with a carriage or other vehicle; and, if it is go-
ing at such a rate of speed as to frighten horses, there is liability
on the part of the rider only when his want of care can be shown.* ^*
Carriages and other vehicles drawn by horses become dangerous be-
cause of the motion given to them, and because of the tendency of
horses to run away and otherwise do damage. It is convenient, how-
ever, to postpone the discussion of these cases.* ^^

A car with a defective brake is not such an immediately dangerous
instrument as to render a railroad company liable to any one injured
thereby, in the absence of contract or other relation; *** but "cer-
tainly the absence of slight care in the management of so dangerous
an agency as a railroad train in motion is gross negligence." ^^^ A
railroad corporation is, therefore, bound to adopt and use tried and
proved modern machinery and appliances in the operation of the
road, and in the management and control of the trains. And fail-
ure to equip even freight cars with air brakes may be actionable

207 Frazier v. Uoyd (Pa. Sup.) 16 Atl. 418.

308 Parish v. Williams, 88 Iowa, 66, 55 N. W. 74; Witte v. Dieffenbach, 54
N. Y. Super. Ct. 508; McCaull v. Bruner (Iowa) 59 N. W. 37.

209 Brown v. Leclerc, 22 Can. Sup. Ct. 53 (Gwynne, J., dissenting).

210 Ledig V. Germania Brewing Co., 153 Pa. St. 208, 25 Atl. 870.

211 Mercer v. Corbin, 117 Ind. 450, 20 X. E. 132.

212 Holland v. Bartch, 120 Ind. 4G, 22 N. E. 83. Generally, as to law of
bicycles, see 47 Alb. Law J. 401.

218 Post, pp. 801, 877.

21* Roddy V. Missouri Pac. Ry. Co., lOi Mo. 234, 15 S. W. 112; I^ke Shore
& M. S. Ry. Co. V. Hundt, 140 lU. 525, 30 N. E. 458. Nor an unguarded hand
car, Kobinson v. Oi-egon, S. L. & U. N. R. Co., 7 Utah, 493, 27 Pac. 080; ex-
cept when in rapid motion, Conklin v. New York Cent. & H. R. R. Co. (Sup.)
17 N. Y. Supp. 651.

215 LoulsviUe & N. R. Co. v. Mitchell, 87 Ky. 327-337, 8 S. W. 706; Rich-
ardson V. New York Cent. & H. R, R. Co., 133 N. Y. 563, 30 N. E. 148; Thomas
V. Chicago & G. T. Ry. Co., 86 Mich. 496, 49 N. W. 547; Lapsley v. Union
Pac. R. Co., 50 Fed. 172.

8150 NEGLIGENCE. [Ch. 12

negligence.^^* The sudden starting of a train while one is board-
ing a car is actionable negligence.*^^ The law throws upon those
who launch a vessel the obligation of doing so with the utmost pre-
caution, and giving such a notice as is reasonable and sufficient to pre-
vent any injury happening from the launch.*^" Ck)llisions between
railroad trains *^* or street cars,^*® and injury to pedestrians,^^^ or

216 Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796.

217 Jury should determine whether it is negligence to give a signal before
starting a train, when people are crossing between cars. Burger v. Missouri
Pac. Ry. Co., 112 Mo. 238, 20 S. W. 439. Gfenerally, as to passing between ob-
structing cars, see Id.; Flynn v. Eastern Ry. Co., 83 Wis. 238, 53 N. W. 494;
Pannell v. Nashville, F. & S. R. Co., 97 Ala. 298, 12 South. 23C; Henderson
v. St. Paul & D. Ry. Co., 52 Minn. 479, 55 N. W. 53; Eddy v. Powell. 4 U.
S. App. 259, 1 C. C. A. 448. and 49 Fed. 814. Hart v. West Side R. Co.. 86
Wis. 483, 57 N. W. 91; Mt. Adams & Eden P. Ry. Co. v. Doherty, 8 Ohio
Cir. Ct. R. 349; Hlckenbotton v. Delaware, L. & W. R. Co., 122 N. Y. 91, 25
N. E. 279; Myers v. Dean, 132 N. Y. 72, 30 N. B. 259; Fuller v. Jamestown
St. Ry. Co., 75 Hun, 273, 26 N. Y. Supp. 1078. Shunting cars against a per-
son unloading is a question of negligence, for the jury. Spotts v. Wabash
West. Ry. Co., Ill Mo. 380, 20 S. W. 190. As to shunting cars past crossing:
Negligence per se, Alabama ^. V. Ry. Co. v. Summere, li8 Miss. 566, 10 South.
63; gross negligence, Schindler v. Milwaukee, L. S. & W. Ry. Co., 87 Mien.
iOO, 49 N. W. 070. A collection of authorities on the duty of a railroad com-
pany to maintain lookouts on its trains. Smith v. Norfolk & S. Ry. Co. (N. C.)
25 Lawy. Rep. Ann. 287, 19 S. B. 863, 923.

218 The Andalusian, 2 Prob. Dlv. 233. Collisions between steamers depend
upon negligence, with due reference to inspector's rule and general marine
law. Belden v. Chase, 150 U. S. 674, 14 Sup. Ct. 264; The Marpesia, L. R.
4 P. C. 212.

21 » Bvansville & T. H. R. Co. v. Krapf (Ind. Sup.) 36 N. B. 901. This sub-
ject is governed largely by statute. E. g. Byrne v. Kansas City, Ft S. &
M. R. Co., 9 C. C. A. 666, 61 Fed. 605; Richmond & D. R. Co. v. Greenwood,
99 Ahi. 501, 14 South. 403.

2 20 Collision on intersecting lines. Gulf, C. & S. F. R. Co. v. Pendery (Tex.
Civ. App.) 27 S. W. 213; Chicago City Ry. Co. v. McT^iu^hlin. 40 111. App.
496. Evidence of negligence of driver of car at other times is inadmissible.
Little Reck & M. R. Co. v. Harrell, 58 Ark. 454, 25 S. W. 117.

221 Texas & N. O. R. Co. v. Hare, 4 Tex. Civ. App. 18, 23 S. W. 42; Gurley
V. Missouri Pac. R. Co., 122 Mo. 141, 26 S. W. 953; Blount v. Grand
Tiunk Ry. Co., 9 C. C. A. 526, 61 Fed. 375; Johnson v. Chicago & N. W. R. Co.
(Iowa) 59 N. W. 66; Trowbridge v. Danville S. R. Co., 19 S. E. 780; Dun-
seath V. Pittsburg, A. & M. Traction Co., 101 Pa. St 124, 28 Atl. 1021.

Ch. 12J ESSENTIAL ELEMENTS. H61

persons driving vehicles,^^* or to property,^^* resulting from being
struck by railroad trains or street cars, are governed by the test of
■commensurate care in view of all the circumstances of the case.^^*
A company running trains is not an insurer of safety.^ -° The rate
of speed, apart from statute,^^* and failure to use a headlight or to

222 Peterson v. St. Paul City Ry. Co., 54 Minn. 152, 55 N. W. 906; Greeley
V. Federal St. & P. V. Pass. Ry., 153 Pa. St. 218, 25 Atl. 796; Will v. West
Side R. Co., 84 Wis. 42, 54 N. W. 30. One is not necessarily negligent in driv-
ing on a cable-car track. Fleokenstein v. Dry-Dock, B. B. & B. R. Co., 105 N.
Y. 655, 11 N. B. 951; Cambies v. Third Ave. R. Co., 1 Misc. Rep. 158, 20 N.
T. Supp. 633. Et vide O'Neil v. Dry-Dock, E. B. & B. R. Co., 129 N. Y. 125,
29 N. E. 84; Piper v. Pueblo City Ry. Co., 4 Colo. 424, 36 Pac. 158; Little v. Su-
perior Rapid Ti-ansit Co., 88 Wis. 402, 60 N. W. 705; Glazebrook v. West End
«t. R. Co., 160 Mass. 239, 35 N. E. 553; Richmond & D. R. Co. v. Yeamans, 90
Va. 752, 19 S. E. 787; Haney v. Pittsburgh, A. & M. Traction Co., 159 Pa. St.
395. 28 Atl. 235; Kerrigan v. West End St. Ry. Co., 158 Mass. 305, 33 N. E.
-523; Atchison, T. & S. F. R. Co. v. McClurg, 8 C. C. A. 322, 59 Fed. 860;
kestner v. Pittsburgh & B. Traction Co., 158 Pa. St. 422, 27 Atl. 1048; Wilson
V. New York, N. H. & H. R. Co. (R. 1.) 29 Atl. 300; Swain v. Fourteenth St.
R. Co., 93 Cal. 179, 28 Pac. 829; Riegelman v. Third Ave. R. Co., 9 Misc. Rep.
m, 29 N. Y. Supp. 299; Shea v. St. Paul City R. Co., 50 Minn. 395, 52 N. W.
902; Tboresen v. La Crosse City R. Co., 87 Wis. 597, 58 N. W. 1051; Smith v.
-Citizens' Ry. Co., 52 Mo. App. 36; Piper v. Pueblo City R. Co., 4 Colo. App.
424. 36 Pac. 158. As to whether injury results from fright of hoi-ses or negli-
^nce of motorman, see Omaha St. Ry. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531 ;
Gibbons v. Wllkes-Barre & S. St. Ry. Co., 155 Pa. St. 279, 26 Atl. 417. It is
not negligence In matter of law to drive between tracks of railroad. Reif-
«nyder v. Chicago, M. & St. P. Ry. Co. (Iowa) 57 N. W\ 692. A collection of
authorities on the liability of a street railway for injuries by collision with
vehicles and horses. Hicks v. Citizens' Ry. Co. (Mo. Sup.) 25 Lawy. Rep. Ann.
50^ 27 S. W. 542.

2 28 As a dog, Melsch v. Rochester Electric Ry. Co., 72 Hun, 604, 25 N. Y.
Supp. 244. And see Omaha St. Ry. Co. v. Duvall. 40 Neb. 29, 58 N. W. 531;
Scott V. Yazoo & M. V. Ry. Co. (Miss.) 16 South. 205; Missouri, K. & T.
Ry. Co. V. Palmer (Tex. Civ. App.) 27 S. W. 889; Hanison v. Chicago, M. &
St. P. Ry. Co. (S. D.) 60 N. W. 405. As to liability of electric cars, see
Watson V. Minneapolis St R. Co., 53 Minn. 551. 55 N. W. 742; McKlllop v.
Duluth St R. Co., 53 Minn. 532, 55 N. W. 739; Lincoln Rapid Transit Co.
V. Nichols, 37 Neb. 332. 55 N. W. 872.

224 Accidents at railroad crossings will be found discussed In 9 Law. Rep.
Ann. 157, note, where the earlier cases are collected.

22 5 Chicago, K. & W\ R. Co. v. Fisher, 49 Kan. 460, 30 Pac 462.

»2« Gllmore v. Federal St & P. V. Pass. Ry. Co., 153 Pa. St 31, 25 Atl. 051;

8^)2 NEGLIGENCE. [Ch. 12

ring a bell when the engine is running in the dark,^*^ may be suffi-
cient to show negligence, and even willful and wanton negligence.
The running of railroad trains over crossings in the open country at
a high rate of speed is not, however, negligence per se,^** and even
in a city; '^* but it is a high degree of negligence for a railroad com-
pany to make a running or flying switch in the populous part of a
city."^** Prudent men are accustomed to observe a less degree of
care to avoid teams on a city highway than they would, under the
same circumstances, to avoid cars on a railroad highway.^'^ What
precautions are necessary to prevent running over or being run over
is commonly a matter of fact, and not of law.^** The danger of
rapidly moving machinery calls for the exercise of care on the part
of its owner to avoid damage to persons lawfully near it, and to*
youthful or inexperienced employes, as circumstances may deter-
mine. To the person injured, however, such machinery is suggestive
of danger, and he must exercise care accordingly.^'* And disre-

Watson V. Minneapolis St Ry. Co., 53 Minn. 551, 55 N. W. 742; Quincy
ilorse Ry. & C. Co. v. Gnuse, 38 111. App. 212 (reversed in another point, 137
III. 2fi4, 27 N. E. 190).

227 East St. Louis Connecting R Co. v. O'Hara, 150 lU. 580, 37 N. E. 017.

228 Childs v. Pennsylvania R. Co., 150 Pa. St 73, 24 Ati. 341. Compare
Lapsley v. Union Pac. R. Co., 50 Fed. 172.

2 20 The running of a iwssenger train on schedule time across a highway itt
a city of 17,000 inhabitants at a rate of 25 miles an hour is not, in tlie ab-
sence of an ordinance limiting the speed to a lower rate, negligence per se,
Tobias V. Michigan Cent. R. Co. (Mich.) CI N. W. 514. This mUng may be
regarded as carrying to an extreme the submission of questions of fact to
the jury. Ordinary cases of tlie kind should of course go to the jury. Leder-
man v. Pennsylvania R. Co., 105 Pa. St. 118, 30 AtL 725; Link v. Phila-
delphia & R. R. Co., 1C>5 Pa. St 75, 30 Atl. 820.

230 Kentucky Cent R. Co. v. Smith, 93 Ky. 449, 20 S. W. 392. Et vide
York V. Maine Cent R. Co., 84 Me. 117, 24 Atl. 790; Ohio & M. R. Co. v. Mc-
Daneld, 5 Ind. App. 108, 31 N. E. 830; Ward v. Chicago, St P., M. & O. Ry.
Co., 85 Wis. (501, 55 N. W. 771.

231 Post. p. 9.19, "Contributory Negligence"; Patterson v. Townsend (Iowa)
59 N. W. 205; Muncle St. Ry. Co. v. Majnard, 5 Ind. App. 372, 32 N. E. 343.

232 Purtell V. Jordan, 156 Mass. 573, 31 N. E. (552; Norton v. Ittaer, 56 Mo.
351; Sandifer v. Lynn, 52 Mo. App. 552; Centi'al Ry. Co. v. Coleman (Md.)
30 Atl. 918; Thatcher v. Central Traction Co. (Pa. Sup.) 30 Atl. 1048; laquin-
ta v. Citizens' Traction Co. (Pa. Sup.) 30 Atl. 1131.

233 Post, p. l(Kr»; lUissi'U v. Tlllotson, 140 Mass. 201, 4 N. E. 231; Cool-

Ch. 12] ESSPJNTIAL ELEMKNTS. 86-^

gard of such danger, as to put one's hand in a revolving machine, i»
contributory negligence sufficient to bar recovei^.^'*

^ectricity.

In the employment of electricity, wrongs may be done by the
machinery, poles, wires, and other appliances, without a special
reference to the dangerous character of the electricity. Such
wrongs may be regarded from the point of view of nuisance '**
or trespass ^^"^ or negligence.-^^ As to such appliances, a person
who owns, us(*8, or controls, is held to a degree of care at least
corresponding to similar agencies in other lines of business.^'*

Where the electrical current is involved, liabilitv would seem to
be determined by rules of negligence, — that is, by care proportion-
ate to the danger,^'^® — and not by the principles involved in the duty

broth V. Maine Cent. R. CJo., 77 Me. 168; Prentiss v. Kent Furniture Manuf'gr
Co., 03 Mich. 478, 30 N. W. 109.

234 Muldowney v. IlUnois Cent R. Co., 36 Iowa, 462; Money v. Lower View
Coal Co., 55 Iowa, 671, 8 N. W. 652; Seefeld v. Chicago, M. & St. P. R. Co.,
70 Wis. 217, 35 N. AV. 278; Glascock v. Central Pac. R. Co., 73 Cal. 137, 14
Pac. 518.

236 Telegraph pole. Reg. v. United Kingdom Electric Tel. Co., 31 Law J.
Mag. Cas. 166, 10 Wkly. Rep. 538; 1 DilL Mun. Corp. § 374; New York & N.
J. Tel. Co. V. East Orange, 42 N. J. Eq. 490. 8 Atl. 289.

23« Memphis Bell Tel. Co. v. Iluat, 16 Lea (Tenn.) 456, 1 S. W. 159; Tissot
▼. Telephone Co., 39 La. Ann. 906, 3 South. 261; Clay v. Postal Tel. Co.,.
70 Miss. 406, 11 South. (558.

287 In order to sustain an action against a street-railway company for
maintaining an electric pole in the 8>treet in a dangerous manner, it must be
shown that it failed in the degree of care for the public safety which it should
have had, and that plaintiff was without fault Cleveland v. Bangor St Ry.,
86 Me. 232, 29 Atl. 1003.

288 By improper location of poles. Shettield v. Central Union Tel. Co., 36
Fed. 164; Wolfe v. Erie Telegiaph & Telephone Co., 33 Fed. 320. Et vide
ante, p. 145, "Damage Incident to Authorized Act," note 182.

239 Thomp. Eleotr. 66, 67; Southwestern Telegraph & Telephone Co. v.
Robinson, 1 C. C. A. 684. 50 Fed. 810; Aheru v. Oregon Telegraph & Tele-
phone Co., 24 Or. 276, 33 Pac. 403, and 35 Pac. 549. Where, however, a city
ordinance under which an electric lighting company is originated required it to
have its splices on its wires perfectly insulated, the failure to do so is negli-
gence. Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 11 South.
51. A telephone company has, however, been required to exercise such care
as will giuard the public against the injury of a live wire hanging down on a

8G4 NEGUGKNCE. fCh. 12

to insure safety,**^ nor in nuisance.**^ A live wire, however, is ex-
ceedingly dangerous. So that proof of contact therewith and con-
sequent damages makes out a complete case of prima facie negli-
gence, and throws the burden on the defendant to show that such
wire was in the streets without fault on his part.**' Generally,
companies using electricity on lines along a street are charged
with the highest degree of care, having due reference to existing
knowledge,**' in the construction, inspection, and repair of their wires
and poles, and in use of devices to guard against harm.*** In the
leading case of Cumberland Tel. & Tel. Co. v. United Electric Ry.
Co.,**° it was specifically held that, in the present state of elec-

sidewalk. As to absolute liability, Kankakee El. Ry. Co. v. Whitteinore, 45
111. App. 484.

240 The English courts would consistently class such cases with Rylands v.
Fletcher, L. R. 3 H. L. 330. In that case Kekewich, J. (in National Tel. Co.
V. Baker [1893] 2 Ch. 186), states the principle to be that "if the owner of land
uses it for any purpose which, from its character, may be called *nonnatural
user,'— such as, for example, the introduction onto the land of something
which in the natui*al condition of the land is not upon it,— he does so at his
peril, and is liable if sensible damage results to his neighbor's land, or if the
latter's legitimate enjoyment of his land is thereby materially curtailed."

241 3 Minn. Law J. Thl, comparing Cumberland Tel. & Tel. Co. v. United
El. Ry. Co., 42 Fed. 284, with Hudson River Tel. Co. v. Watervliet Turnpike
& Ry. Co., 135 N. Y. 393^09, 32 N. E. 148.

24 2 Uggla V. West End. St. Ry. Co., 160 Mass. 351, 35 N. E. 1126. Compare
Hector v. Boston Electric Light Co., 161 Mass. 558, 37 N. E. 773; Haynes ▼.
Raleigh Gas Co.. 114 N. C. 203, 19 S. E. 344.

243 It is, therefore, a question of fact, for the jury, whether a company
operating an electric railroad is negligent in not maintaining a guard wire
over its trolley wire, so as to prevent a fallen telephone wire from resting on
its trolley wire, and becoming charged with the trolley current, to the injury
of one driving along the street Block v. Milwaukee St. Ry. Co., 89 Wis.
371, 61 N. W. 1101.

244 Hnynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E. 344; Arkansas Tel.
Co. V. Ratteree, 57 Ark. 429, 21 S. W. 1059. Concurrent negligence of rail-
way company and telegraph company: Electric Ry. Co. v. Shelton* 89 Tenn.
423, 14 S. W. 863; DUlingham v. Crank, 87 Tex. 1(M, 27 S. W. 93. A review
of recent decisions caused by the great advances in the use of telegraph and
telephone wires, and by the increase of litigation with reference to the rights
and wrongs connected with such use, will be found In 58 J. P. 617.

24 3 Cumberland Tel. & Tel. Co. v. United El. Ry. Co., 42 Fed. 273.

Ch. 12] ESSENTIAL ELEMENTS. 865

trical science, a telephone company cannot maintain a bill for
an injunction against the operation of an electric railway to pre-
vent damages inoidentally snstainod by escape of elootrioity from
Its rails. However, the supreme court of Tennessee '*^ lield that
when a telephone company, already in operation, is injured by the
effects of the more powerful electric current used by a trolley com-
pany operating on the street on which the wires of the telephone
company are placed, by reason of the trolley current invading the
telephone exchange and the houses of subscribers, the trolley com-
pany is liable for the damage done to the business of the tele-
phone company; and none the less so because the latter did not
obviate the effects of conduction by making the necessary changes
in its plant. Being first on the ground, it was not bound to make
such change.

Summary.

The common-law duty to exercise care to avoid doing harm to
others may be derived from the ownership, custody, control, or
use of instrumentalities which may of necessity, or in reason-
able probability, inflict damage. In determining liability for in-
juries caused by such instrumentalities, the courts have not thor-
oughly distinguished whether such liability is to be referred to
principles governin,2j: fa) nuisance; (b) duty to insure safety; (c)
negligence; or (d) malicious wrongs.^*^ More specifically (and
leaving malicious wrongs out of view) accumulations of water,
things of weight, fire, explosives, poisons, wild or vicious animals^
have been regarded from the point of view of nuisance, negligence,
and absolute duty to keep safe; while things in motion and elec-

24 fl Cumberland Tel. & Tel. Co. v. United El. Ry. Co. (Tenn.) 29 S. W. 104.
"This commends Itself to the justice, as well as the judgment, of mankind, far
better than the contrary position taken by the Ohio courts in Cincinnati In-
clined Plane Ry. Co. v. City & Suburban Telegraph Ass'n, 48 Ohio St. 390, 27
N. E. 890, or the refusal of the supreme court of New York to enjoin the erec-
tion of an electric road (Hudson River Tel. Co. v. Watervliet Turnpike & Ry.
Co., 135 N. Y. 393, 32 N. E. 148), which was followed in National Tel. Co. v.
Baker [1893] 2 Ch. 186." And see a short article on the liability for escape
of electricity, with citations of the most recent cases, by E. W. Huffcut, in 1
N. Y. Law Rev. 56.

«*7 Ante, c. 9.

LAW OF TORTS— 55

8G6 NEGLIGENCE. [Ch. 12

tricity are generally regarded from the point of view of either neg-
ligence or nuisance.

The English rule is**® essentially as follows: Irresponsible in-
struments may be such as are not dangerous apart from the con-
duct of the keeper or user of them, and such as are dangerous in
themselves. Everything is deemed dangerous to rights which ei-
ther causes actual damage thereto, or which does so in tJie
absence of a degree of care and prudence the continual exercise
of which cannot be expected. As to things not dangerous in them-
selves, the owner or keeper is not held responsible for harm caused
thereby, provided he does not know of the mischief or danger, or
only knows of it as existing in certain circumstances, and the harm
that occurs does not arise from these circumstances, and he has
taken the care which a prudent man would take in keeping or
using such thing according to the nature and properties of things
of its class. But as to irresponsible instrumentalities dangerous in
themselves, and such instrumentalities which, though not neces-
sarilv or ordinarily in this class, are, and are known actually or
by imputation of law to the owner or keeper to be, dangerous to
I'ights, the duty imposed on the owner or keeper is not to harm;
and harm done, however careful he may have been to avoid it, is
still imputed to him as an effect arising from his having risked the
chance of harm occurring from the instrumentality employed by
him. This doctrine is largely modified, and is subject to, at least,
the following exceptions: (a) The act of God or vis major; (b) the
wrongful interference of third persons; (c) the plaintiff's own
fault; (d) artificial work maintained for the common benefit of
the plaintiff and the defendant (as in Carstairs v, Taylor); and

24 8 The matter foUowIng Is substautially in the language of Mr. Innes
iTorts, pp. 73-92). In chapter 12, under title "Duties of Insuring Safety,'^
Mr. Pollock discusses the subject with eminent clearness and ability. See,
also. Clerk & L. Torts, 333, and Pig. Torts, 107, for further English cases
on the subject. Jackson v. Smithson, 15 Mees. & W. 5G3, 15 Law J. [gxch.
311; Card v. Case, 5 C. B. G22 (compare Popplewell v. Pierce, 10 Gush«
509); Farrant v. Barnes, 11 C. B. (N. S.) 553; WiHIams v. Clough, 3 Hurl. &
N. 258; Assop v. Yates, 2 Hurl. & N. 768; Powell v. Fall, 5 Q. B. DIv. 597.
As to damage Incident to authorized act, Madras Ry. ▼. Zemindar of Car-
vcliiiagarum, supra.

Ch. 12] ESSENTIAL ELEMENTS. 867

(e) where, by virtue of a custom, there is damnum absque injuria
<as in the Zemindar Case).

The American courts have only partially, and by no means uni-
formly, accepted these views. They incline to test liability, un-
der such circumstances, by principles of negligence; to hold the
owner and keeper of such instrumentalities to the exercise of a
proportionately high degree of care; and to recognize the produc-
tion of damage by such instrumentalities as prima facie evidence
of wrongdoing.

262. What is due care under the drcumstances may have
reference to a person's knowledge of the danger.
Knowledge of danger may be either actual or pre-
sumed by law.

Knowledge.

The duty to take care "must be determined in all cases by refer-
ence to the situation and knowledge of the parties and all the at-
tendant circumstances. What would be extreme care under one
condition of knowledge and one state of circumstances would be
gross negligence with different knowledge and in changed circum-
stances." ^*' "Facts which were known to the defendant, or by use
of proper diligence would have been known to a man in his place,
come into account as part of the circumstances'' **® which deter-
mine due care. Knowledge of facts out of which a duty springs is
especially an element to be considered in determining the care to be
exercised in the use of some mechanical ^"^ or natural agency ^'*

24» Nitroglycerine Case, 15 Wall. 524. *

250 Pol. Torts, 356. That plaintiff had never ridden on electric car before
may be proved, to show cause of failure to alight from car in safety. Au-
gusta Ry. Co. V. Glover, 92 Ga. 132, 18 S. E. 406. And, generally, see Grlfflu
V. Auburn, 58 N. H. 121-124; Robinson v. Cone, 22 Vt 213.

251 As an elevator. Smith v. Whittler, 05 CaL 279, 30 Pac. 529.

262 A knowledge of the ground upon which a dam is constructed. Hoffman
V. Tuolumne Water Co., 10 CaL 413. It is on the same principle that scienter
must be alleged and shown to attach liability to owner or keeper of domestic
animals. As to this there is also a principle involved In the Dynamite Case,
ante, p. 8i7, "Explosions."

868 NEGLIGENCE. [Ch. 12

whose superior force demands skill in its management to prevent
its getting beyond ordinary control.

On the same principle, the owner of places likely to be dangerous
to an innocent third party may be held liable for not keeping them
safe, if he knew, or ought to have known, their dangerous condition.
The possibility of hann puts on him the duty of keeping them in
proper condition. His knowledge of the condition, therefore, may
be actual or constructive. This is well illustrated in the liability of a
municipal corporation for the defective and dangerous condition of
its street. If it has not actual knowledge of such condition, notice
may be imputed to it.**^* In the absence of actual notice, however, it
is liable for only such defects in its sidewalks and streets as are
apparent or are suggested by appearance, or are disclosed by a test
in the nature of the ordinary use of such streets or walks.*^* Thus,
the presence of a guide rope for two days and nights over a fashion-
able and crowded thoroughfare is sufficient to justify the inference
of notice, by lapse of time, to the city authorities.'*^* Even nine
hours has been held sufficient time in which to discover and remedy

2 68 Lindliolm v. City of St. Paul. 19 Minn. 245 (Gil. 204); 2 Thomp. Ne^.
7(52, note 5. And see City of Austin v. Colgate (Tex. Civ. App.) 27 S. W.
81)G; Loberg v. Town of Amherst, 87 Wis. 634, 58 N. W. 1048; Butler v.
Town of Malvern (Iowa) 59 N. W. 50; Riddle v. Village of Westfleld, 65 Hun*
432, 20 N. Y. Supp. 359. A petition to a village board for a new sidewalk
seven feet wide in place of one four feet wide does not show knowledge by
the board of defects existing in the old walk six months later. Barrett v.
Village of Hammond, 87 Wis. G54, 58 2^. W. 1053.

«6* Montgomery, J., dissenting. Hembllng v. City of Grand Rapids, 99
Mich. 292, 58 N. W. 310; Moore v. City of Minneapolis, 19 Minn. 300 (Gil.
258). A petition that alleges that defendant city, at the date of the Injurj'
complained of, and for a long tiAe prior thereto, negligently permitted a
street railroad to be maintained on a street so as to dangerously obstruct
travel, is sufficient, in the absence of a demurrer or motion, to charge defend-
ant with notice. Union St Ry. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012. In
an action for injuries caused by a defective sidewalk, evidence showing the*
condition of the walk in the vicinity is admissible to charge the city with
notice of the defect. Edwards v. Common Council of Village of Three Riv-
ers (Mich.) 60 N. W. 454; Lynch v. Hubbard, 101 Mich. 43. 59 N. W. 443;
Smith V. City of Rochester (Sup.) 29 N. Y. Supp. 539.

255 City of Chicago v. Fowler, 60 111. 322. Seven days is not sufficient.
City of Chicago v. McCarthy, 75 111. 002.

Ch. 12] ESSENTIAL ELEMENTS. 869

a dangerous defect on a much traveled highway.*'* What length
of time is enough to impute notice where there is no actual notice is a
question to be dc^cided in view of all circumstances, ordinarily by
the jury, but sometimes by the court.**^^

So the knowledge, actual or constructive, of a master as to ap-
pliances,^** place,^** or improper fellow servants,*®*' may be ma-
terial to his negligence."*^ So, one who, with knowledge, actual
or constructive, of danger, goes into a dangerous place, assumes the

2»« Stellwagen v. City of Winona, 54 Minn. 460, 56 N. W. 51. A vlUage
which has granted the right to construct a street railroad is chargeable with
knowledge of what is being done under the grant, and therefore is liable for
injuries caused by an excavation left at night without signal lights or guards,
though the excavation was made on the day of the injury. Hoyer v. Village
of North Tonawanda (Sup.) 29 N. Y. Supp. 650.

«»T Kh-k V. Village of Homer (Sup.) 28 N. Y. Supp. 1009; City of Chicago v.
Fowler, and cases cited, supra; Loberg v. Town of Amherst, 87 Wis. 634, 58
N. W. 1048.

258 Houston V. Brush, 66 Vt. 331, 29 Atl. 380. Cf. Union Pac. Ry. Co. v.
James, 6 C. C. A. 217, 56 Fed. 1001; Columbus, H. V. & T. Ry. Co. v. Erlck
<Ohio Sup.) 37 N. B. 128 (under statute); Louisville & C. Ry. Co. v. Allen, 47
111. App. 465; Haskins v. New York Cent. & H. R. R. Co. (Sup.) 29 N. Y.
Supp. 274 (blocking of frog).

2 50 The petition in an action against a railroad company for injuries to an
employ^ resulting from a defect in defendant's roadbed, alleged to have been
either a defect in original construction, or caused by washing, was Insufficient
where It did not aver that defendant had notice of the defect, or faots show-
ing that it had existed for such a time and under such circumstances that
defendant could be charged with notice. Parrott v. New Orleans & N. E. R.
Co., 62 F. 562. Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 South.
88; Louisville & N. R. Co. v. Earl's Adm'x, 94 Ky. 308, 22 S. W. 607; Mur-
phey V. Wabash R. Co., 115 Mo. 111. 21 S. W. 862; O'Driscoll v. Faxon, 156
Mass. 527, 31 N. E. 085; Smith v. The Serapis, 8 U. S. App. 49, 2 C. C. A. 102,
51 Fed. 91. And see Wallac-e v. Central Vt. R. Co., 138 N. Y. 302, 33 N. E.
1069; Louisville, E. & St. L. C. R. Co. v. Utz, 133 Ind. 265, 32 N. E. 881.

2«o In an action by an engineer against a railroad company for personal in-
juries caused by the negligence of a brakcman, it is proper, after giving evi-
dence that the brakeman had been drinking Just before the accident, to show
his reputation for intemperance, for the purpose of charging defendant with
knowledge of his intemperate habits. Norfolk & W. R. Co. v. Hoover (Md.)
29 Atl. 991.

2«i The master is charged with knowledge which he actually has, and such
knowledge as he ought to have in the exercise of reasonable care and dili-

870 NEGLIGENCE. [Ch. 12

apparent risk, and cannot complain of consequent injuries.*** In-
deed, failure to recognize obvious defects may be negligence.*** No
doubt, if a man voluntarily runs into a danger which he fully ap-
preciates, in common cases he cannot recover for it; and it is
rather a question of words than of substance whether he shall be
called negligent or shall be said to have taken the risk.*** Thus if
a patient directs an operation to be performed, relying on his own
judgment, a surgeon is not liable for the injuries resulting there-
from.**' But a man does not take a risk of any, danger which may
arise from certain causes merely because, in a general way, he is
aware of the existence of these causes.*** Nor is previous knowl-
edge of danger conclusive evidence of contributory negligence. For

gence on his part in the performance of his duty as a master. Noyes v.
Smith, 28 Vt. 59; Gibson v. Pacific Ry. Co., 46 Mo. 163; Peering, Neg. § 200;
3 Wood. R. R. § 376.

»«2 Gulf, C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 04, 19 S. W. 1015; Platl
V. Cliicago, St. P., M. & O. Ry. Co., 84 Iowa, 604, 51 N. W. 254; WilUams V.
City, 19 Can.. Sup. Ct. 159. But see DoUard v. Roberts, 130 N. Y. 269, 29 N. B.
104. And, further, see Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819;
Walker v. Town of Reidsville, 96 N. C. 382, 2 S. E. 74; Miner v. Connecticut
R. R. Co., 153 Mass. 398, 26 N. E. 994; Town of Gosport v. Evans, 112 Ind. 133^
13 N. E. 256; Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 11
South. 51; Louisville & N. R. Co. v. Schmctzer, 94 Ky. 424, 22 S. W. 603;
Prcwitt V. Eddy, 115 Mo. 283, 21 S. W. 742. Plaintiff's decedent, a railroad
bralveman, was struck and killed by a skidway near the track, the existence
of which he had knowledge of, while standing on the step of a passing car,
leaning forward and looking backward and under the car. Held that, be-
cause of decedent's contributory negligence, plaintiff could not recover for his
deatli from the owner of the skidway. Walker v. Redington Lumber Co., &>
Me. 191, 29 Atl. 979. In an action for Injuries caused by a defective side-
walk, where plaintiff knew of the defect, and was watching for it when in-
jured, but came to It sooner than she expected, and could not see it on ac-
count of the night being dark and stormy, she was not, as a matter of law,
guilty of contributory negligence. Sias v. Village of Reed City (Mich.) 61 N.
W. 502.

263 Allls V. Columbian University, 19 D. C. 270; Boylan v. Brown, 63 Hun,
027, 17 N. Y. Supp. 648.

26* Miner v. Connecticut R. R. Co., 153 Mass. 398, 20 N. B. 994.

26B Gramm v. Boener, 50 Ind. 497; Hancke v. Hooper, 7 Car. & P. 81.

260 Holmes, J., in Powers v. City of Boston, 154 Mass. 60-63, 27 N. E. 995,
citing Tliomas v. W. U. Tel. Co., 100 Mass. 156-158; Baston v. Springfield,
110 Mass. 131; Dewire v. Bailey, 131 Mass. 160; Lawless v. Connecticut River

Ch. 12] ESSENTIAL ELEMENTS. 871

example, it is not necessary that the thoughts of a traveler should
at all times be fixed on a defect in a public thoroughfare of which he
may have had notice."^ It has been clearly recognized by the
courts that knowledge of defect or danger is not necessarily appre-
ciation of risk.*** The application of these principles is very com-
monly made to cases of master and servant; but the principles are
general. On similar principles, knowledge of danger, even to a
trespasser or wrongdoer, creates a duty of avoiding injury.^®'

263. The common-law standard of diligence is absolute.
It does not vary with the ability of the individual.
The individual is held only to the exercise of such
care as can be reasonably expected of persons of
the recognized class to which he belongs. The law
recognizes three classes of persons, as to capacity:

(1) Persons deprived of reason, as a child or lunatic.

(2) Persons of defective capacity or sense.

(3) Ordinary persons.

It is insisted that one of the essential elements of negligence — a
fortiori, of contributory negligence — is that the person to whom it

R. Co., 136 Mass. 1-5; Ferren v. Old Colony R. Co., 143 Mass. 1»7, 9 N. E. G08;
KeUy V. Blackstone, 147 Mass. 448-451, 18 N. E. 217. And see Texas & P.
R. Co. V. Volk, 151 U. S. 73, 14 Sup. Ct. 239.

2«T city of Aurora v. Dale, 90 111. 46; Village of Clayton v. Brooks, 31 111.
App. 62, affirmed 150 lU. 97, 37 N. E. 574; Chilton v. City of Carbondale, lOD
Pa. St. 463, 28 Atl. 833; Cumisky v. City of Kenosha, 87 Wis. 286, 58 N. W.
395.

868 Fitzgerald v. Paper Co., 155 Mass. 155, 29 N. E. 464, and cases collected,
page 161, 155 Mass., and page 464, 29 N. E. Post, p. 1021, ^'Master and Serv-
ant"

2«» Ante, c. 1: Plaintiff a wrongdoer. Et vide Louisville, N. O. & T. Ry.
Co. V. Williams, 69 Miss. 631, 12 South. 957; Reardon v. Missouri Pac. Ry.
Co., 114 Mo. 384, 21 S. W. 731; Goodwin v. Railroad Co., 96 Ala. 445, 11
South. 393; Wren's Adm'r v. Louisville, St. L. & T. Ry. Co. (Ky.) 20 S.
W. 215; Union Pac. Ry. Co. v. Mertos, 35 Neb. 204, 52 N. AV. 1099; Norwood
V. Raleigh & G. R. Co., Ill N. C. 230, 16 S. E. 4, following Lay v. Richmond
& D. R. Co., 106 N. C. 404, 11 S. E. 412. Guenther v. Railway Co., 108 Mo.
18^ 18 S. W. 846; Strudley v. Railway Co., 48 Minn. 249, 51 N. W. 115; Geor-
gia Railroad & Banking Co. v. Daniel, 89 Ga. 463, 15 S. E. 538.

872 NEGLIGENCE. [Ch. 12

is to be attributed should be legally responsible. This follows
necessarily from the view that negligence means a state of the par-
ty's mind, or that responsibility for torts depends upon culpabili-
ty. The courts, irrespective of theories, however, have clearly rec-
ognised the doctrine that responsibility is graduated according
to capacity, and determined by recognized classes.

As will be seen, children non sui juris cannot have contributory
negligence attributed to them.^^^ So unconscious agents*^* and
lunatics — ^persons entirely bereft of reason — cannot be held respon-
sible for jiersonal negligence, or have contributory negligence im-
puted to tliem.'^* With respect to childi*en, however, there comes
a period at which the child is responsible. This period is not defi-
nite, and the liability is graduated according to experience. "All
the cases agree that the measure of a child's responsibility is his
capacity to see and appreciate danger, and the rule is that, in the
absence of clear evidence of the lack of it, he will be held to such
measure of discretion as is usual in those of his age and experi-
ence." ^^' The measure varies with the course of each additional
year, but the increase of responsibility is graduated.*^* It has,
however, been held to be within the limits of the discretion of a
trial judge to admit testimony from the plaintiff's former school-

270 Post, p. 987, "Infants," note 717. But see ^lanjian v. Atterton, L. R. 1
Exch. 239.

2 71 Parrot v. Wells, 15 Wall. 524; Pierce v. Winsor, 2 Cliff. 18, Fed. Cafl.
No. 11,150; Hoffman v. Water Co., 10 Cal. 413; Todd v. Cochell, 17 Cnl 97.

272 16 Am. & Eng. Enc. Law, 400, subd. 6; Whart. Neg. § 88; Washington
V. Baltimore & O. R. Co., 17 W. Va. 190, per Green, J.

2 7:^. Huff V. Ames, 16 Neb. 139. 19 N. W. 623; Beach, Contrib. Neg. § 46;
Sliear. & R. Neg. § 73; Whit. Smith, Neg. p. 411; RaUroad Co. v. Stout, 17
Wall. G.j7.

274 Mitchell, J., in Kehler v. Schwenk, 144 Pa. St. 348, 22 Aa 910; Green-
way V. Conroy, 160 Pa. St. 185, 28 Atl. 692; Lay v. Midland Ry. Co., 34 Law
T. (N. S.) 30; Elkins v. Railroad Co., 115 Mass. 190; Railroad Co. v. Glad-
mon, 15 Wall. 401; Lynch v. Smith. 104 Mass. 52; Union Pac. R. Co. v. Mo-
Dcjnald, 152 U. S. 262, 14 Sup. Ct. 619; Lynch v. Nurdin, 1 Q. B. 29, 35, 3(t;
Reed v. City of Madison. 83 Wis. 171, 53 N. W. 547; Chicago, B. & Q. R. Co.
V. Orablhi, 38 Neb. 90, 56 N. W. 796, and 57 N. W. 522; Central Railroad &
Banking Co. v. Phillips, 91 Ga. 526, 17 S. B. 952; Omaha & R. V. Ry. Co.
V. Morgan, 40 Neb. 604, 59 N. W. 81; Powers v. Railway Co. (Minn.) 58 N.
W. 307; Mitcliell v. Tacoma Ry. & Motor Co., 9 Wash. 120, 37 Pac. 341.

Cb. 12] ESSENTIAL ELEMENTS. 873

teacher that she was an unusually dull girl, although at the time
of trial she was 17 years old.*^°

The care which a person defective as to physical sense must exer-
cise has reference to his capacity, to the actual or constructive knowl-
edge thereof by the defendant, and his consequent exercise of care
with reference thereto. A blind or deaf man has as much right to
walk on the streets as any other man,*^* but he must exercise more
care than a person physically sound. Thus, a deaf person must
be more careful in keeping a lookout for passing vehicles than if
his hearing was not defective.^^' However, a blind person, falling
into a hole on the sidewalk carelessly left open, is entitled to re-
covery.*^^ But one having notice of another's defective physical
condition must exercise corresponding care to avoid injuring him.*^*
No recovery can be had if intoxication was the cause of the acci-
dent Indeed, drunkenness may tend to show contributory negli-
gence.*^*

The standard of care adopted by the courts is that of the aver-
age prudent or reasonable man; that is, of a man of ordinary pru-
dence in the nonexpert degree, or a good business or professional
man in his specially expert degree.^ *^ It does not vary with the

«T» Connors v. GriUey, 155 Mass. 575, 30 N. B. 218. A master's duty to in-
struct a minor servant as to danger of employment in which he is to be en-
gaged is to be measured by the circumstances of each particular case, and
not by the knowledge and experience of ordinary youth of the same age.
KeUer v. Gaskill, 9 Ind. App. 679, 30 N. B. 303.

2T« Pol. Torts, 372, 373.

27 7 Fenneman ▼. Holden, 75 Md. 1. 22 Atl. 1M9

27 8 City of Franklin v. Barter, 127 Ind. 446, 26 N. B. 882.

27 9 As to giving special warning of blast to deaf plaintiff, see City of
Champaign v. White, 38 111. App. 233.

2S0 BIsh. Noncont. Law, § 513; 1 Shear. & R. Neg. 93; Alger v. Lowell, 3
Allen (Mass.) 402; Beach, Contrib. Neg. 66; Illinois Cent. R. Co. v. Cragin, 71
111. 177; Fitzgerald v. Town of Weston, 52 Wis. 355, 9 N. W. 13; Welty v.
Indianapolis & V. R. Co., 105 Ind. 55, 4 N. E. 410; Buddenberg v. Transporta-
tion Co., 108 Mo. 394, 18 S. AV. 970; Hubbard v. Town of Mason City, 60
Iowa, 400, li N. W. 772; Brad well v. Railway Co., 153 Pa. St 105, 25 Atl.
C23; Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. B. 268; East Ten-
nessee & W. N. C. R. Co. V. Winters, 85 Tenn. 240, 1 S. W. 790; Fisher v.
Railroad Co., 39 W. Va. 366, 19 S. B. 578.

«•! Whart. Neg. § 4a

874 NEGLIGENCE. [Ch. 12

judgment of an individual. That a man acts according to his best
judgment is no defense. In Yaughan v. Menlove,'** an action was
held to lie against defendant for so negligently constructing a hay-
rick on his own land that, in consequence of its spontaneous igni-
tion, his neighbor's house was burned. Tindall, G. J., said, as to
the ruling, that the question ought to have been whether the de-
fendant had acted honestly and bona fide, to the best of his own
judgment. "That, however, would leave so vague a line as to afford
no rule at all, the degree of judgment belonging to each individual be-
ing infinitely various." Accordingly, neither sex ^^* nor ignorance '**
nor personal ability nor skilP*° affect the standard of duty. On
the one hand, mental absorption or reverie, induced by grief or
business, will not excuse the omission to look and listen for an
approaching train.* "• But, on the other hand, the fact that a pian
may be called upon to act without opportunity to deliberate is to
be considered, in determining what is care under the circumstan>
cea.*®^

With respect to contributory negligence, however, the theory of
the law is not consistent. Kor is the distinction between an error
of judgment and negligence easily determined. It Is certain that
mere want of success, where there has been the exercise of one's best
judgment, does not constitute negligence. *^o one can be charged
with carelessness when he does that which his judgment approves
of, or where he omits that of which he has no time to judge. Such
action or omission, if faulty, may be called a mistake, but not neg-

282 3 Bing. N. C. 468-474. And see Berg v. City of Milwaukee, 83 Wis. 599,
53 N. W. 800; Com. v. Pierce, 138 Mass. 165; Bailey, J., in Jones v. Bird,
5 Barn. & Aid. 837; Wortbington v. Mencer, 96 Ala. 310, 11 South. 72.

5<88 Simms V. South Carolina R. Co., 27 S. C. 268, 3 S. E. 301; Ridenhour
V. Kansas City Cable Ry. Co., 102 Mo. 270, 13 S. W. 889, and 14 S. W. 760;
Hassenyer v. Michigan Cent R. Co., 48 Mich. 205, 12 N. W. 155.

2 84 Jones v. Fay, 4 Fost. & F. 525.

«85 Post, p. 911 et seq., "Physician and Attorney."

ase Havens v. Erie R. Co.. 41 N. Y. 296; Mann v. Stock- Yard Co., 128 Ind.
138, 26 N. E. 819.

287 Defendant gave warning of approaching car containing lumber by
shouting "Boy." Plaintiff relied on this, was absorbed in his work, signal
was not given, and injury occurred. Held not contributory negligence. An-
derson V. Northern Mill Co., 52 Minn. 424, 44 N. W. 315.

Ch. 12] ESSENTIAL ELEMENTS.

ligence." ^** Accordingly, it has been held that where a
the exercise of his best judgment and skill, piloted a vesi^
destruction, he is not liable for her loss, although the resuu onows
that his best judgment was wrong.^®** And there is authority for
the proposition that an attorney at law is not liable if he acts hon-
estly, and to the best of his ability.

264. What is due care under the circumstances is deter-
mined by reference, among other things, to —

(a) Custom and usage affecting the plaintiff's conduct;

(b) License and invitation.

Among the circumstances to be considered in determining what
is negligence, the law recognizes existing usage and custom. The
usage and custom may amount to almost positive law (as the law of
the road, in the absence of statute),**^ or, falling short of thiSj it may
depend upon general business usage (as in the case of landing of
steamboats),*"^ or upon the general practice of the parties in the
particular case at issue (as use of a path by licensee).*** Care,

88 » Brown v. French, 104 Pa. St. 604; Williams v. Le Bar, 141 Pa. St 149^
21 Atl. 525.

2»o Mason v. Brvine, 27 Fed. 459. Bt vide The Tom Lysle, 48 Fed. 690.

«»i Post, p. 877, "Law of Road."

so 2 Thus, plaintiff, an employ 6 of a Mississippi steamer, must conform to a
well-known custom of landing. He assumes the risk incident thereto, and, if
thereby injured, he cannot recover. Red River Line v. Cheatham, 9 C. C.
A. 124, 60 Fed. 517, ovorruling 56 Fed. 248. So as to a ship placed in peril
by another's improper navigation, takes a wrong course, and is damaged.
The Bywell Castle, 4 Prob. Div. 219. Care to be exercised with reference
to a switch crossing the street has reference to its ordinary use. Quirk v. St
Louis United Elevator Co. (Mo. Sup.) 28 S. W. 1080. In view of a custom of
placing unfinished cars on a side track to be completed, the presence of new
cars on such track may be considered by a jury as sufficient notification to^
those in charge of a locomotive on the track that workmen were probably
enga;j:ed on the cars diuing ordinary working hours. Cleveland, C., C. & St.
L. Ry. Co. V. Zider. 10 C. C. A. 151, 61 Fed. 908.

«»» Generally, as to admission of evidence as to habits of plaintiff, defend-
ant, and employes, see Chicago, St. P. & K. C. Ry. Co. v. Anderson, 47 111.
App. 91; Connors v. Morton, 160 Mass. 333, 35 N. B. 860; Kennedy v. Springy
160 Mass. 203, 35 N. E. 779; Toledo, St. L. & K. C. R. Co. v. Bailey, 145 111.
159, 33 N. B. 1089; Towle v. Pacific Imp. Co., 98 Cal. 342, 33 Pac. 207; Chi-

SI 6 NEGLIGENCE. [Ch. 12

with reference to a usage or custom, is sometimes confused with
-customary or usual care, but the two things are entirely distinct.
On the one hand, if a person exercises usual or customary care, it
may be evidence, although not conclusive, of the exercise of dili-
gence.^** On the other hand, he must exercise care with reference
to a usage or custom, known or which ought to be known, which
custom or usage may affect the probability of harm ensuing from
A given course of conduct.

The consideration of these cases is intimately connected and some-
times identified with care having reference to conditional permission,
or what are sometimes called "non-contractual relations." Such con-
sideration may depend upon whether the plaintiff is a licensee, an in-
vited person, or a mere volunteer, or a trespasser. The determination
of such cases does not rest merely upon any one view of the circum-
stances, but upon them all. It will be convenient to consider these
cases as follows: First, the duty to persons in public places; and,
second, the duty to i)ersons on the defendant's premises. Duties
peculiar to the relationship of master and servant, or of contractee
and common carriers, will be subsequently considered, under "Con-
tractual Duties." Injuries to persons in public places, where no ques-
tions as to exemptions of the state, or municipal or similar corpora-
tions, are involved, constantly arise (a) from the operation of en-
gines, trains, electric cars, and the like over crossings and on streets;
<b) from the ordinary use of highways by driving, riding, and the
like; and (c) from some act of the defendant making a highway
•dangerous and unsafe.

-cago, St L. & P. K. Co. v. Spilker, 134 Ind. 380, 33 N. E. 280, and 34 N. B.
218; Jagger v. Bank, 63 Minn. 386, 55 N. W. 545.
28* Day V. H. 0. Akeley Lumber Co., 54 Minn. 522, 66 N. W. 24a

Ch. 12] ESSENTIAL ELEMENTS. 877

266. Due care requires that, as to public highways, own-
ers, drivers, or keepers of vehicles or horses, and
travelers regard —

(a) The custom or law of the road;^

(b) The danger likely to result from ordinary and ex-

traordinary use.

The owner, driver, or rider ^°* of horses being driven or ridden
along a highway is bound to exercise that care which a reasonably
prudent person uses in the management of the ordinary affairs of
life. There can be no liability unless there is negligence or willful
misconduct on the part of rider or driver.^*^

"Foot passengers have equal rights in the streets with those
mounted on horseback, or driving in carriages. Neither can have a
priority of right over the other. Both are bound to exercise reason-
able care to avoid collision." *"• A bicyclist stands in the same po-
sition.*** But a bicycle, ordinarily, may not lawfully be used on a
sidewalk.*** With respect to damages to pedestrians, or from col-
lisions with other vehicles, the liability is governed by the ordinary
considerations of fact, and by reference to the law of the road. The
rights and obligations of pedestrians and driver are correlative, and

295 A short article on the "Law of the Road," by Israel H. Peres, will be
found in 4 Yale Law J. 137.

296 The rule of the road applies as well to saddle horses as to vehicles. Tur-
ley V. Thomas, 8 Car. & P. 103.

2»TSilsby V. Michlgaan Car. Co., 95 Mtch. 204, 54 N. W. 761. Compare
Barnes v. Brown, 95 Mich. 576, 55 N. W. 439; Holmes v. Mather, L. R. 10
Exch. 261 (Bramwell, B.): "As to the cases cited, most of them are really
decisions on the form of action, whether case or trespass. The result of them
is .this (and it is intelligible enough): If the act which does the injury is an
act of direct f<H-ce, vi et armis, trespass is the proper remedy (if there is
any remedy), where the act is wrongful, either as being willful or as being
the result of negligence. Where the act is not wrongful for either of these
reasons, no action is maintainable. That is the effect of the decisions." It
would seem that this case overrules Michael v. Alestree, 2 Lev. 172.

2»8 Stringer v. Frost, 116 Ind. 477, 19 N. E. 331; Belton v. Baxter, 54 N. Y.
24a

2oa Thompson v. Dodge (Minn.) 60 N. W. 545. And see 47 Alb. Law J. 404.

«oo Mercer v. Corbin, 117 Ind. 450, 20 N. B. 132,

878 NEGLIGENCE. [Ch. 12

each owes the other a duty to avoid accidents.**^* Among considera-
tions of fact there should be considered rate of speed at which the
horse is going, the harness and other tackle with which it is pro-
vided, the attention of the driver, and similar matters. '^^^ The com-
mon American law of the road, requiring persons to turn to the
right in traveling upon the highway or street,^®^ and not on diagonal
crossing,^®* applies only when there is a contingency. The traveler
or driver is not obliged to turn to the right rather than to the left
unless he is about to meet or pass another person or vehicle.*®*
But then traveling on the wrong side of a road may be such con-

soi Reens v. Mall & Express Pub. Co., 10 Misc. Rep. 122, 30 N. Y. Supp. 913;
Eckensberger v. Amend, 10 Misc. Rep. 145, 30 N. Y. Supp. 915.

802 "Evidence that the driver of an express wagon drove at a trot, looking
at the stores along one side of the street for business, without observing or
managing his <team with reference to pedestrians using the crossing, shows
negligence." Thompson v. National Exp. Co., 66 Vt 358, 29 AtL 311, Whether
a driver of a wagon at a street crossing could resume his course, after check-
ing his horse to allow a foot passenger to get out of the way, without negli-
gence, is for the jury. Crowley v. Strouse (Cal.) 33 Pac. 456. Compare
Menger v. Lauer, 55 N. J. Law, 205, 26 AU. 180. Et vide Post v. United
States Exp. Co., 76 Mien. 574, 43 N. W. 636; Cotton v. Wood, 8 C. B. (N. S.)
568; Orr v. Garabc^d, 85 Ga. 373, 11 S. B. 778; Perrins v. Devendorf, 22
lU. App. 284; Landa v. McDermott (Tex. Sup.) 16 S. W. 802. Racing along
a highway is not per se negligence. Potter v. Moran, 61 Mich. 60, 27 N. W.
854. Compare Middlestadt v. Morrison, 76 Wis. 265, 44 N. W. 1103. Im-
proper speed is evidence of negligence. Schwartz v. Brahm, 130 Pa. St. 411.
18 Atl. 643. Compare Keck v. Sandford (City Ct N. Y.) 22 N. Y. Sup. 78.
The question of speed and caution is of special importance at crossings.
Williams v. Richards, 3 Car. & K. 81. PulUng a wrong rein is evidence of
negligence, Wakeman v. Robinson, 1 Bing. 213; or spurring a horse which is
within kicking distance of plaintiff. North v. Smith, 10 C. B. (N. S.) 572. As to
tackle, Welsh v. Lawrence, 2 Chit. 262. The Scottish law on this subject will
be found discussed in 6 Sc. Law Rep. 121,

803 Earing v. Lansingh, 7 Wend. 185.

804 The law of the road does not regulate the manner in which persons shall
drive when they meet at the junction of two streets. Norris v. Saxton, 158
Mass. 46, 32 N. E. 954. In England the law of the road is to turn to the
left 7 Green Bag, 96.

805 Brember v. Jones (N. H.) 30 AtL 411; Parker v. Adams, 12 Mete. (Mass.)
415-419; Brooks v. Hart, 14 N. H. 307; Johnson v. SmaU, 5 B. Mon. 25;
Love joy v. Dolan, 10 Cush. 495; Damon v. Scituate, 119 Mass. 66-08.

Ch. 12] ESSENTIAL ELEMENTS. 879

tributory negligence as to bar recovery for damage done.*®' If,
however, for courtesy or other reasons, a driver waives his right
of way, and goes to the left side of the road, this does not exonerate a
wrongdoer who caused a dangerous place to exist in the road.'*®^
It is not itself negligence to drive a wagon on the left of the trav-
eled part of the road; but this is a circumstance to be considered,
in connection with everything else, in determining whether the
driver was reasonably careful.'®* Moreover, if a collision can be
better avoided by going on the wrong side, it is not merely justi-
fiable to do so, but obligatory.'®* The rule is the same where a light
vehicle gives place to a heavier one,'^*^ or where the right side of the
street is crowded or dangerous.'"

And, on the other hand, merely because one may have the right
of way, he is not authorized to run another down, even if the latter
be in fault.'**

Care of horses on public streets has due reference to the proba-
bility of harm ensuing to other users of the highway because of

soe Damon v. Scltuate, 119 Mass. 66; O'Malley v. Dom, 7 Wis. 204; Norrts
V. Litchfield, 35 N. H. 271. A bicycle, Randolph v. O'Rlordon, 155 Mass. 331,
29 N. B. 583. Et vide Schlmpf v. SUter, 64 Hun, 403, 19 N. Y. Supp. 644;
O'NeU V. Town of East Windsor, 63 Conn. 150, 27 Atl. 237; Thoresen v.
La Crosse City Ry. Co., 87 Wis. 597, 58 N. W. 1051.

»0T Atlanta St Ry. Co. v. WaUcer, 93 Ga. 462, 21 S. E. 48.

ao« Mes^-yey v. Lockett, 161 Mass. 332, 37 N. E. 310, citing, inter alia, Lloyd
V. Ogleby, 5 C. B. (N. S.) 667; Cotterill v. Starkey, 8 Car. & P. 691. In
driving from one side to the other of a street In which a railroad track is
laid, it is not negligence as a matter of law to cross the track obliquely.
Lynch v. ViUage of New Rochelle, 78 Hun, 207, 28 N. Y. Supp. 962. Peculiar
care must be exercised by the person not driving on the regular side of
the road. Pluckwell v. Wilson, 5 Car. & P. 375; Lack v. Seward, 4 Car. &
P. 106. Generally, see Spurrier v. Front St Cable Ry. Co., 3 Wash. St. 659,
29 Pac. 346; O'Neil v. Town of East Windsor, 63 Conn. 150, 27 Atl. 237; Rlepe
V. Elting (Iowa) 56 N. W. 285; Randolph v. O'Rlordan, 155 Mass. 331, 20 N.
E. 583.

809 Clay V. Wood, 5 Esp. 44; Schlmpf v. SUter, 64 Hun, 463, 19 N. Y. Supp.
644.

•10 Grler v. Sampson, 27 Pa. St. 183.

•11 Mooney v. Trow Directory Printing & Bookbinding Co., 2 Misc. Rep.
238, 21 N. Y. Supp. 957.

»i2 Ante, p. 195. '

880 NEGLIGENCE. [Ch. 12

runaways.*^* Leaving a horse unattended is evidence of negligence,
and may in itself support an inference of negligence.*^* Indeed, it
is insisted that leaving a horse unhitched and unattended in a street
is prima facie evidence of negligence, to be rebutted by showing
there were circumstances of excuse or justification.*^" But the li-
ability of the owner or keeper is determined by principles of negli-
gence. There is no duty to insure safety. And a person is not
liable for damage done by a runaway unless fault can be traced to
him.*^* The care to be exercised to prevent it depends on the char-
acter of the horse, and of the surroundings, including the neighbor-
hood, the atmosphere, and the like. On the same principle, ordi-
nary care and watchfulness in crossing a street must be exer-
cised. And, while not bound to use the regular crossings exclu-
sively, one should exercise unusual caution if he crosses at an unu-
sual place.'**

818 Phillips V. Dewald, 79 Ga. 732, 7 S. E. 151, and cases cited; McMahon v.
Kelly (City a. Brook.) 9 N. Y. Supp. 544; Griffith v. Clift, 4 Utah, 462, 11
Pac. (509.

814 Broult V. Hanson, 158 Mass. 17, 32 N. E. 900. It is negligence per se
to leave a horse standing unfastened and unattended at a railroad station.
Edwards v. Philadelphia & R. R. Co., 148 Pa. St. 531, 23 Atl. 894. Et vide
Gilmore v. Federal St. & P. V. Pass. Ry., 153 Pa. St 31, 25 Ati. 651. One
who leaves unhitched and unattended, within 19 feet of a railroad ti*ack, a
team of horses, young, high-lifed, and afraid of cars, is negligent as a matter
of law. Olson v. Chicago, M. & St. P. Ry. Co., 81 Wis. 41, 50 N. W. 4T2,
1096. Compare Hill v. Scott, 38 Mo. App. 370: Hudson v. Houser, 123 Ind.
809, 24 N. E. 243.

816 Henry v. Klopfer, 147 Pa. St. 178, 23 Atl. 337, 338. Compare Illidge
V. Goodwin, 5 Car; & P. 190. Post, p. 951, discussion as to whether or not an
act is ever negligent for the court, or whether it is evidence of negligence for
the jury.

810 Holmes v. Mather, L. R. 10 Exch. 2G1; Brown v. Collins, 53 N. H. 442;
Sullivan V. Scripture, 3 AUen, 564; Lynch v. Brooklyn City R. Co., 52 Hun, 614,
5 N. y. Supp. 311; O'Brien v. Miller, GO Conn- 214, 22 Atl. 544; Thorp v.
Minor, 100 N. C. 152, 13 S. E. 702; Hammack v. White, 11 C. B. (N. S.) 5S8;
Manzonl v. Douglas, 6 Q. B. Div. 145; Riepe v. Elting (Iowa) 56 N. W. 285.
Compare Luedtke v. Jeffery, 89 Wis. 136, 61 N. W. 292.

818 Henry v. Grand Ave. R. Co., 113 Md. 525, 21 S. W. 214.

Ch. 12] ESSENTIAL ELEMENTS. 881

266. Care to be exercised at level railroad crossinf^ has
reference —

(a) To the conduct on the part of railroad company jus-

tifying the assumption that the line is dear.

(b) To arrangements and surroundings affecting ability

to ascertain ^^hether the lines are clear. ^^^

Conduct of Railroad Companies,

Thus, if a railroad company voluntarily establishes a gate at a
highway crossing, there is an implied assurance that the tracks may
be safely crossed if the gates are open. Accordingly, leaving them
open when a train is approaching is evidence of negligence.*"® If a
railway company has recognized and acquiesced in the use of a pri-
vate crossing over its tracks, and adopted the usual signals therefor
on the approach of its trains, it cannot lawfully discontinue the sig-
nals without notice; *"^ and it is immaterial whether the requirement

8i» Pol. Torts, § 367.

820 Wilson V. New York. N. H. & H. R. Ck>. (R. I.) 29 Atl. 258. A fortiori,
where the gates were required by city ordinance. Missouri Pac. Ry. Co. v.
Hackett, 54 Kan. 316, 38 Pac. 294; Evans v. Lake Shore & M. S. R. Co., fiS
Mich. 442, 50 N. W. 380; Rhode v. Chicago & N. W. Ry. Co., 86 Wis. 309, 50
N. W. 872; Gurley v. Missouri Pac. Ry. Co., 122 Mo. 141, 20 S. W. 953 (open-
ing between cars for passer-by). And see Metropolitan St. R. Co. v. John-
son, 91 Ga. 466, 18 S. E. 816; Chicago, M. & St. P. Ry. Co. v. Carpenter, 5
C. C. A. 551, 56 Fed. 451 (cattle men walking on top of cars); Coif v. Rail-
way Co., 87 Wis. 273, 58 N. W. 408 (habit of employes to jump off moving
cars is no excuse); Rimipel v. Railway Co. (Idaho) 35 Pac. 700 (nor is the
habit of going under cars which block the street an excuse). However, it is
not per se contributory negligence to stop a train in accordance with long
mutual acquiescence at a track crossing, where a collision follows through
failure of an approaching train to stop within 50 feet of the crossing (Act
Ky. March 10, 1894), because of defective brakes. Louisville & N. R. Co. v.
East Tennessee, V. & G. Ry. Co., 9 C. C. A. 314, 60 Fed. 993. Et vide Mat-
thews V. Philadelphia & R. R. R., 161 Pa. St. 28, 28 Atl. 930. The question
of implied invitation or license to the public to cross a railroad track where
there is no highway is treated in a Massachusetts case (Chenery v. Fltchburg
R. Co., 35 N. Pi. 5.54) with somewhat gi-eater strictness than in other cases,
holding that it can only arise from such appearances or circumstances as
'vould lead ordinarily prudent and intelligent persons to understand that tlie
cmsslng was public.

321 Westaway v. Chicago, St. P., M. & O. Ry. Co., 50 Minn. 28, 57 N. W. 222;
Hlnkle v. Railroad Co., 109 N. C. 472, 13 S. E. 884, and cases cited, affirmed

LAW OF TORTS — 56

8^2 NEGLIGENCE. [Ch. 12

of signals is statutory or merely customary,*'* And, when the
trains are running at unusual times (as on Sunday), particular cau-
tion on approaching a crossing must be exercised by those in
charge.'^' Moreover, circumstances making a crossing exceptional-
ly dangerous, as where a much-used highway is shut off from the
view of the track, may justify a finding by a jury that a company
is negligent in not providing a gate and a flagman.'^* And while
the duty in approaching a crossing with a train or engine is to exer-
cise commensurate, and not the highest, care,*^^ it is a breach of
duty to back a train of flat cars over a crossing in the suburbs of a
city on a dark night without having on it any brakeman, light, or
other signal.*^*

Conduct of Travelers.

It is negligence per se on the part of a traveler to disregard the
usual rate of speed and the times at which trains pass over a given
crossing.**' It is his clear duty, as he comes or goes upon a railroad
crossing, to use every reasonable precaution to avoid injury. He

Ward V. Railroad Co., 113 N. C. 56G, 18 S. B. 211; McGrath v. Railway Co.,
iKi N. Y. 522; Pittsburgh, C. & St L. Ry. Co. v. Yundt, 78 Ind. 373; Casey
V. New York Cent & H. R. R. Co., 78 N. Y. 518. Customaiy speed, Shaber v.
Railway Co., 28 Minn. 103, 9 N. W. 575. Custom at yard as to running in
cars, Pennsylvania Co. v. Stoelke, 104 IlL 201.

322 Vandewater v. New York & N. E. R. Co., 74 Hun, 32, 26 N. Y. Supp. 307.
Et vide Artz v. Railroad Co., 34 Iowa, 53. So as to a gate. Marflll v. S^uth
Wales Ry. Co., 8 C. B. (N. S.) 525. And generaUy see Delaware, L. & W. R.
Co. V. Shelton, 55 N. J. Law, 342, 2C Atl. 937. Compai'e Vallance v. Boston &
A. R. Co., 55 Fed. 3G4; Labey v. Raib^ad Co., 2 Misc. Rep. 537, 22 N. Y. Supp.
.SSO, distinguisUng Schmidt v. Railway Co., 132 N. Y. 566, 30 N. E. 389. Owens
V. People's Pass. Ry. Co., 155 Pa. St 334, 26 AtL 74a

3 28 Hyde Park v. Gay, 120 Mass. 589. Compare Koebler v. Railway Co., 66
Hun, 566, 21. N. Y. Supp. 844. Running a train behind schedule time does
not excuse plaintiff's failure to exercise ordinary care. Jenkins v. Railroad
Co., 89 Ga. 756, 15 S. E. 655.

324 Hubbard v. Boston & A. R. Co., 162 Mass. 132, 38 N. E. 366.

32 5 Chicaj?o, R. I. & P. Ry. Co. v. Caullield, 11 C. C. A. 552, 63 Fed. 3D6.

320 Chli-Jiffo, R. I. & P. Ry. Co. v. Sharp, 11 C. C. A. 337, 63 Fed. 532.

32T Alabama G. S. R. Co. v. Linn (Ala.) 15 South. 508; Gulf, C. & S. P. R.
Co. V. Welch (Tex. Civ. App.) 27 S. W. lOCJ; Elkins v. Boston & A. R. Co., 115
Mass. 19(); Retan v. Railway Co., 94 Mich. 146, 53 N. W. 1094. A rail-
road employ^ is negligent in not keeping a lookout for customary shunting of
cai-s. Schaible v. Railway Co., 97 Mich. 318, 56 N. W. 565.

Ch. 12] ESSENTIAL ELEMENTS. 883

should look both ways.**® And failure or delay with respect to cus-
tomary or statutory signals on the part of a railroad company does
not exempt hinob from the performance of this duty if the surround-
ings are such as to admit of such a precaution.^*® Any one who
voluntarily attempts to cross a track in front of a moving train ap-
proaching the crossing at no considerable distance, where there is
nothing to obscure the vision, is guilty of contributory negligence,

82 8 Gorton v. Erie Ry. Co., 45 N. Y. 06; International & G. N. R. Co. v.
Nefif, 87 Tex. 303, 28 S. W. 283. Compare Pittsburg, C, C. & St L. Ry. Co.
V. Burton (Ind. Sup.) 38 N. E. 594.

820 Failure to ring bell or sound whistle does not exempt. Chicago, B. &
Q. R. Co. V. Hanvood, 80 III. 88; McGiU v. Railway, 152 Pa. St. 331, 25
Atl. 540; Wesley v. Railway Co., 84 Iowa, 441, 61 N. W. 163; Jennin<?s v.
Railway Co., 112 Mo. 268, 20 S. W. 490; Cleveland, C. & C. R. Co. v. Craw-
ford, 24 Ohio St. 631; Mann v. Stock- Yard Co., 128 Ind. 138, 20 N. E. 819:
Stubley v. London & N. W. Ry. Co., L. R. 1 Exch. 13. Where it is a phys-
ical impossibiUty for plaintiff not to see defendant's train if she had looked,
there can be no recovery. Campbell v. Union Ry. Co. of New York City (Com.
PI. N. Y.) 30 N. Y. Supp. 246; Groner v. Delaware, etc., Canal Co., 153 Pa. St.
390, 26 Ati. 7; Graf v. Railway Co., 94 Mich. 579, 54 N. W. 388. Compare Wright
y. Railway Co., 94 Ky. 114, 21 S. W. 581. Et vide Hogan v. Tyler, 90 Va.
19, 17 S. E. 723, following Mark's Adm'r v. Railroad Co., 88 Va. 1, 13 S. B.
299; Magner v. Truesdale, 53 Minn. 436, 55 N. W. 607; Southeast & St. L.
R. Co. v. Stotlar, 43 III. App. 94. But it is not negligence per se for a person
Intending to cross a street-railway track to fail to look in both directions.
Shea v. St. Paul City Ry. Co., 50 Minn. 395, 52 N. W. 902. It is not negli-
gence as a matter of law to cross a street without looking both ways for ap-
proaching vehicles. Reens v. Mail & Express Pub. Co. (Com. PL N. Y.) 30 N.
Y. Supp. 913. And see Pyne v. Railroad Co. (Com. PI. N. Y.) 19 N. Y. Supp.
217, following Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415. But see
contra, Ehrisman v. Railway Co., 150 Pa. St. 180, 24 Atl. 596; Wheelahan
V. Traction Co., 150 Pa. St. 187, 24 Atl. 688; Ward v. Railway Co., 63 Hun,
624, 17 N. Y. Supp. 427. Where one is struck by a train at a railway cross-
ing and killed, and there is no direct evidence to prove that he looked and
listened, but there is some evidence that, if he had done so, he could not
have seen the approaching train in time to avert a collision, the question of
bis contributory negligence is for the jury. Struck v. Chicago, M. & St. P.
Ry. Co. (Minn.) 59 N. W. 1022. One who drives on a railroad track at a point
where there Is an unobstructed view of the track for 2(X) feet, and does not
notice an approaching train, the usual warning and signals having been
given, is guilty of contributory negligence. Shires v. Fonda, J. & G. R. Co.,
80 Hun, 92, 30 N. Y. Supp. 175. Plaintiff's intestate was struck and killed

884 KEQLIGENCE. [Ch. 12

as a matter of law.*^* But, unless the evidence clearly shows that
the accident was due to want of ordinary care on the part of the
injured person, the tendency of modem authority is to leave the mat-
ter very much at large for the jury.*®^ The same degree of care is
not required on the part of one crossing the track where the train
is irregular or on unusual time as if it were a regular train and on

by defendant's train while driving over its crossing. The train was a wild
train, running 30 miles an hour, and passed the crossing at that time of the
day when it was most used. Though tlie train was light, and though its
speed might have been readily checked, it ran 600 feet beyond the crossing
before it was stopped. Held that, though the whistle was blown when the
train came within 1,300 feet of the crossing, and the beU was rung continu-
ously till it was reached, defendant's negligence was a question for the
jury. Struck v. Chicago, M. & St. P. Ry. Co. (Minn.) 59 N. W. 1022. While
crossing a track at night, near defendant's station, plaintlfTs decedent was
killed by a car, running at the rate of live miles an hour, in charge of a
switching crew. There was no light on the car, and, because of darkness,
the switchman present could not see dece<ient in time to warn him of his
peril, and decedent could not hear the approaching car because of noise by
steam escaping from a passenger engine standing near. Held, that plaintiff
could recover for decedent's death, though decedent may have been guilty of
negligence contributing thereto. Texas & P. Ry. Co. v. Nolan, 11 C. C. A.
1302, (52 Fed. 552; Shea v. Boston & M. It. Co., 154 Mass. 31, 27 N. E. 672,
Verkfetz v. Humphreys, 145 U. S. 418-421, 12 Sup. Ct. SSSi; I-ynch v. Boston
& A. R. Co., 159 Mass. 536, 34 N. E. 1072; Davis v. Railroad Co., 159 Mass.
532, 34 N. E. 1070, where the cases are reviewed by Holmes, J.

830 Delaware, L. & W. R. Co. v. Hefferan (N. J. Err. & App.) 30 Atl. 57S;
Grostick v. Railroad Co. (Mich.) 51 N. W. 07 (and see able and exhaustive dis-
senting opinion of McGrath. J,); Magner v. Truesdale, 53 Minn. 426, 55 N. W.
607; Ohio & M. Ry. Co. v. Hill, 117 Ind. 56, 18 N. E. 461; Dawe v. Flint, etc.,
R. Co. (Mich.) 60 N. W. 838 (McGrath, C. J., dissenting); Heaney v. Long Is-
Uind R. Co., 112 N. Y. 122, 19 N. E. 422; Chicago, R. I. & P. R. Co. v. Houston,
95 U. S. 697; Hayden v. Missouri, K. & T. Ry. Co. (Mo. Sup.) 28 S. W. 74;
Tulley V. Fitchburg R. Co., 134 Mass. 499; Nelson v. Duluth, S. S. & A- Ry.
Co., 88 Wis. 392, (M) N. W. 703; Norwood v. Raleigh & G. R. Co., Ill N, C.
236, 10 S. E. 4; Miller v. New York Cent. & H. R. R. Co., 81 Hun, 152, 30 N.
Y. Supp. 751; Rigg v. Boston, R. B. & L. R. Co., 158 Mass. 309, 33 N. E. 512.

831 Pol. Torts, p. 367. Compare Dublin, W. & W. R. Co. v. Slattery, 3 App.
Cas. 1155, with ElUs v. Great We«U»rn R. Co., L. R. 9 C. P. 551. And see Chi-
cago, St. L. & P. R. Co. V. Butler, 10 Ind. App. 244, 38 N. E. 1, following
Pittsburg, C, C. & St. L. Ry. Co. v. Burton (Ind. Sup.) 37 N. E. 150; Bradwell
V. Pittsburgh & W. E. Pass. Ry. Co., 153 Pa. St. 105, 25 Atl. 623; Northern

Ch. 12] K:<Sl!:NTIAL ELEMENTS. 885

asual time.*'* The rules with respect to street crossings as between
persons using the highway and a street-railway company are essen-
tially the same. **Each have the right to cross, and must cross.
Neither has a superior right to the other. The right of each must
be exercised with due regard to the right of the other, and the right
of each must be exercised in a reasonable and careful manner, so as
not unreasonably to abridge or interfere with the right of the
other." *"

267. The law recognizes the duty of avoiding interference
with highw^ays so as to make their customary use
dangerous.

Liability for interference with the right of the public to enjoy a
public highway with ease and security, even by the use of a man's
own property, has been based on the theory of nuisance.^^* As to
ponderous articles suspended over a street, owners have been held to
the duty of insuring safety from the damage thereby.*^** But the
ordinary basis for responsibility for damage to a traveler on a pub-

Pac. R. Co. V. Austin, 12 C. C. A. 97, 64 Fed. 211; Atchison, T. & S. P. E.
<:<». V. Hague, 54 Kan. 284, 38 Pac. 257; Illinois Gent. R. Co. v. Larswi, 38
N. E. 784; GUmore v. Cape Fear & Y. V. R. Co., 115 N. C. 657, 20 S. E. 371.
Et vide dissenting opinions of Shepherd, C. J,, and Burwell, J.

332 Continental Imp. Co. v. Stead, 95 U. S. 161; Parsons v. New York Cent.
He H. R. R. Co., 114 N. Y. 3.55, 21 N. E. 145.

333 Omaha St. Ry. Co. v. Cameron, 43 Neb. 297, 61 N. W. 606; Rohe v.
Third Ave. R. Co., 10 Misc. Rep. 740, 31 N. Y. Supp. 797; Jones v. Brooklyn
Heights R. Co., 10 Misc. Rep. 543, 31 N. Y. Supp. 445; Citizens' St R. Co.
V. Ix)we (Ind. App.) 39 N. E. 165; Young v. Atlantic Ave. Ry. Co., 10 Misc.
Rep. 541, 31 N. Y. Supp. 441; Omaha St. Ry. Co. v. Duvall, 40 Neb. 29, 58
N. W. 531; North Baltimore Pass. Ry. Co. v. Amreich (Md.) 28 Atl. 809;
Czezewzka v. Benton-BeUefoutaine Ry. Co., 121 Mo. 201, 25 S. W. 911. One
who attempts to drive across a street-railroad track, which he was unable to
see as he approached, owing to a covering on both sides of his wagon, is
guilty of such negligence as will defeat recovery for injuries caused by a
collision with a car. Boerth v. West Side R. Co., 87 Wis. 288, 58 N. W. 376.

«»4 Barnes v. Ward, 9 C. B. 392. This subject is discussed at length in
Wood, Nuis. c. 7; ante. p. 764, "Nuisance."
«85 Ante, p. 836, **ThIngs of Weight."

886 NEGLIGENCE. [Ch. 12

lie *'* or customary **^ way is negligence ''® with respect to the duty
to abstain from so dealing or interfering therewith as to make rt
dangerous for ordinary and proper use.^^^ The duty extends to the
exercise of care that nothing shall drop from above the surface. It
does not, however, ordinarily apply beyond the limits of the high-
way, and attach liability for the proper use of the mere surface of
the owner's own land.^*® A barbed-wire feuce — "a string of sus-
pended daggers" — on such land does not make its owner liable to one
thrown on it by a fractious horse,**^ but it will be otherwise if it
were negligently constructed, even on a man's own land,'** or if the

33e Clark v. Chambers, 3 Q. B. Div. 327, 4 L. J. 427, reviewing many caFtes;
Graves v. Thomas, 95 Ind. 362; Beck v. Carter, 68 N. Y. 283; Young v.
Harvey. 10 Ind. 314. Et vide Deane v. Clayton, 7 Taunt 489; Hooker v.
Miller, 37 Iowa, 613.

887 Philips V. Library Co., 55 N. J. Law, 307, 27 Atl. 478; Johnson v. Lake
Superior Terminal & Transfer Co., 86 Wis. 64, 56 N. W. 161; Texas & P.
Ry. Co. V. Watkins (Tex. Civ. App.) 26 S. W. 760; Rascher v. East Detroit
& G. P. Ry. Co., 90 Mich. 413, 51 N. W. 463; Holland v. Sparks, 92 Ga. 753,
18 S. E. 990; McKenna v. Missourt Pac. Ry. Co., 54 Mo. App. 161. But see
Eggman v, St. Louis, A. & T. H, R. Co., 47 111. App. 507; Norwood v. Raleigh
& G. R. Co., Ill N. C. 236, 16 S. E. 4; Louisville & N. R. Co. v. Schmetzer
(Ky.) 22 S. W. 603; Burg v. Chicagio, R. I. & P. Ry. Co. (Iowa) 57 N. W. 680;
Adams v. New York, L. E. & W. R. Co., 66 Hun, 634, 21 N. Y. Supp. 681.
Perhaps the true solution of cases of this kind is that the question of use iB
one of license, expressed or implied, to be determined by the Jury. Chenery
V. Raih-oad Co., 160 Mass. 211, 35 N. B. 554; Louisville, N. O. & T. Ry. Co.
V. Hlrsch, 69 Miss. 126, 13 South. 244.

338 In Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, where a flagstone
over a vault under the sidewalk broke, plaintiff could not recover for conse-
quent injury, because no actual negligence on the part of tlie lot owner was
shown.

339 So an action will lie for leaving an unmarked obstniction in a river.
Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672; Jutte v. Keystone Bridge
Co., 146 Pa. St. 400, 23 Atl. 235; Hill v. Winsor, 118 Mass. 251. Unguarded
hole in ice near highway no liability, If runaway horse run into it, if Its
speed was so great that ordinarily proper guard would not have prevented
the casualty. Sowles v. Moore, 65 Vt. 322, 26 Atl. 629,

340 A collection of authorities as to the liability of abutting owners for
the dangerous condition of private grounds beside a hlgihway or frequented
path. Lepnlck v. Gaddls, 26 L. R. A. 086 (Miss.) 16 South. 213.

841 Worthlngton v. Wade, S2 Tex. 26, 17 S. W. 520.

•42 Slsk V. Crump, 112 Ind. 504, 14 N. E. 381. Et vide Wabash, St. L. &

Ch. 12] ESSENTIAL ELEMENTS. 887

fence is w^ithout warning put across a way used by the public.***
But, although the owners of land abutting the highway owe no duty
to persons who deviate from the road and come on such property,
the dangerous character of an excavation below the surface of such

P. Ry. Co. V. Locke, 112 Ind. 404, 14 N. E. .391. Negligence; use and custom;
barb-wire fences: Williams v. Midgett, 2 Tex. L. R. 338. Cf. Atlantic & W.
P. R. Co. v. Hudson, 62 Ga. 679, where damages were recovered against a
railroad company for negligently running an engine so as to drive frightened
cattle into such a fence maintained by a railroad company. It would seem
that such a fence is not per se a nuisance, but may become such if allowed
to get out of repair so as to become essentiaUy dangerous. Hlllyard v. Grand
Trunk R. Co., 8 Ont. 583; Lowe v. Guard (Ind. App.) 39 N. E. 428; Loveland
V. Gardner, 79 Cal. 317. 21 Pac. 766; Sisk v. Crump, 112 Ind. 504, 14 N.
E. 381; Carskaddon v. MiUs, 5 Ind. App. 22, 31 N. E. 559. A complaint al-
leging that it was defendant's duty to construct and maintain part of a
partition fence between his land and adjoining land in which plaintilTs horse
was pastured; that this was done negligently, the posts being too far apart
to support the wires, and the wires sagging in such a manner as to induce
horses to attempt to cross the fence, and become entangled therein; and that
plaintiff's horse became entangled in such wires, and was killed by wounds
from the barbs thereon,— is sufficient on demurrer. McFarland v. Swihart
(Ind. App.) 38 N. B. 483. Where defendant moved a barbed-wire fence across
a path used by plaintiff's horses in going to water, whether plaintiff was
guilty of contributory negligence in turning his horse into the pasture, when
he knew the nature of the fence and its change of location, was a question
for the Jury. Boyd v. Burkett (Tex. Civ. App.) 27 S. W. 223.

«*8 Carskaddon v. Mills, 5 Ind. App. 22, 31 N. E. 559. Cf. Clark v. Cham-
ber, 3 Q. B. Div. 327, 47 Law J. Q. .B. 427, 38 Law T. (N. S.) 454. Robertson
V. Wooley, 5 Tex. Civ. App. 237, 23 S. W. 828. If the fence be unlawful, dam-
age therefrom to plaintiff's horse may be recovered. Boyd v. Bm'kett (Tex,
Civ. App.) 27 S. W. 223. A toboggan slide. Haden v. Clarke (Sup.) 10 N. Y.
Supp. 291. In Hurst v. Taylor, 33 Wkly. Rep. 582, a lawful but dangerous
diversion of an old footpath, without light or other precaution to indicate
the change, whereby plaintiff, passing along in d dark night, suffered dam-
age, was held actionable negligence. Circumstances, in the absence of stat-
ute regulating the giving of signals and the employment of flagmen, may
make defendant liable for failure to give usual signals and station a flagman.
Hermans v. New York Cent. & H. R. R. Co., 63 Hun, 625, 17 N. Y. Supp. 319;
Hinkle v. Railroad Co.. 109 N. C. 472, 13 S. E. 884; Tierney v. Chicago & N.
W. R. Co., 84 Iowa, (>41, 51 N. W. 175. Leaving an unguarded oi)en ditch is
actionable negligence. Pine Bluff Water & Light Co. v. Derreuisseaux, 56
Ark. 132, 19 S. W. 428, It is no defense to an action against the owner of
abutting property for injury caused by his defective sidewalk to injured
party. McDaneld v. Logi, 143 111. 487, 32 N. E. 423. But this would seem

888 NEGLIGENCE. [Ch. 12

land, rather than its distance from the street, would seem to be the
true, but by no means certainly settled, criterion of liability.'**

CuMomnry Use.

Highways must be kept safe by the person on whom that duty
falls; and interference therewith is actionable in so far as it affects
the ordinary and customary use of such highway. Therefore, in an
action against a town for injuries caused by the breaking of a bridge

to be largely a matter of statute. Sammlns v. Wilhelm. 6 Ohio Cir. Ct. R.
565.

34* City of Norwich v. Breed, 30 ConiL 535. Substantially adjoining;
Bumes v. Ward, supra; BinliS v. South Yorkshire R. Co., 3 Best & S. 244;
Jones V. Nichols, 46 Ark. 207. Et vide cases collected at Mclntire v. Rob-
erts, 149 Mass. 452, 22 N. E. 13. A man is bound to use his own with due
care to avoid injury to others, and having reference to the ordinary instincts
of human nature. If the abutting ownei-s were to quarry stone so as to
place **a yawning precipice immediately next a sidewalk, and take no pre-
caution to prevent travelers made dizzy falling into the excavation, it is hard
to see why this would not be negligence." See Hounsoll v. Smyth, 7 0. B.
(N. S.) 731. See, however, Hardcastle v. South Yorkshire R. Co., 4 Hurl. &
X. 67; Blyth v. Topham, Cro. Jac. 158; Howland v. Vincent, 10 Mete. (Mass.)
371; Mclntire v. Roberts, 149 Mass. 450, 22 N. E. 13. In this case (where
tliere was an unguarded elevator well near the street, into which a horse
backed a wagon on the sidewalk, causing travelers to Jostle and push plain-
tiflC through the opening). Field, J., said (page 453, 149 Mass., and page 13, 22
N. E.): **In this commonwealth the obligation of a city or town to put up
guards against pitfaUs which are so near to a highway as tv make it unsafe
for travelers, is similar to the obligation which, it seems, is imposed upon
abutters by the English law. We are not aware that it has ever been de-
cided here that excavations made by the owner of land outside the limits
of a highway, but so near to it as to make it unsafe for travelers, constitute
a public nuisance, for creating or maintaining which the landowner may be
punished, or that, In assessing damages for land taken for a highway, any
allowance is made to the landowner for the loss of any right to use the land
not taken, in the same manner as if a highway had not been laid out." While
it is the duty of the supervisors to do what is practicable and reasonable,
under all the circumstances, to make the public road safe, not only as against
causes existing in the roadway itself, but also as to those in such close prox-
imity as to render It natural and probable that Injury to travelers will result
if the cause Is not removed, or proper safeguards be provided, yet, where
no danger may be anticipated from a cause existing beyond the limits of the
roadway, no duty in respect to such cause devolves upon the supervisors.
Worrllow v. Upper Chichester Tp., 149 Pa. St. 40, 24 Atl. S.').

Ch. 12] ESSENTIAL ELEMENTS. 889

under the weight of a steam thresher, the defendant cannot complain
of a charge that, if the bridge was properly constructed and main-
tained with reference to ordinary travel when it was reconstructed,
the defendant would not be liable, though the moving of steam
threshers had in the meantime become an ordinary use of the high-
way.'*" And a side of a street may be in such form, and so used,
with the knowledge and acquiescence of the town, as to be a portion
of the traveled part of the way, though no work has been done on it
to fit it for the use of pedestrians.'**

268. '^The owner or occupier of real estate owes certain
duties to those ^who come thereon, according to the
cause of their entry, and the nature of the danger
to ^which fhey are exposed.

(a) To trespassers it is only against active injury;

(b) To licensees it is to give notice of hidden dangers

or traps;

(c) While to invited persons (as that term is understood

by the law^) the owner is bound to use reasonable
care, having respect to the person and character
of the business to be carried on, to save his guest
from injury ^while upon the premises/'^

8*B Coulter V. Pine Tp., 164 Pa. St &43, 30 Atl. 490:

846 Moran v. Inhabitants of Town of Palmer, 162 Mass. 196, 38 N. E. 442.
But see King v. Thompson, 87 Pa. St 365, distinguishing McNemey v. Citj-
of Reading, 150 Pa. St. 611, 25 Atl. 57.

8*T 34 Am. Law Reg. & Rev. 197. It Is, however, said: "The authorities
appear to have class! fiod this subjtx't under these heads, to wit: (1) Bare
licensees, or volunteers; (2) those who are expressly invited or Induced by
the active conduct of the defendant to go upon the premises; (3) customers
and others, who go there on business with the occupier. Each case must
largely depend upon the circumstances attending the occurrence, and it is not
Infrequently found to be difficult to determine whether the injured party Is
a mere licensee, or whether he is on the premises by the implied invitation or
enticement of the owner or occupier." Benson v. Baltimore Traction Co., 77
Md. 535, 26 Atl. 97:{.

830 NEGLIGENCE. [Ch. 12

Trespassers,

That the owner of premises owes no duty to a trespasser to keep
the premises in a safe condition has already been considered.^**
Even in these eases, however, it would seem that the ordinary rule
as to care under the circumstances will apply; but it must be care-
fully borne in mind, in consideration of the circumstances, that the
trespasser is a wrongdoer.^*^ There is a manifest tendency in the
cases to recognize the duty of the owner of premises and instru-
mentalities to avoid doing harm to other porsons even though they
be wrongdoers.'^®

Volunteers and Licensees.

A mere volunteer or licensee, if he is on the premises by the own-
er's passive acquiescence, is entitled to the exercise of no duty on
the part of the owner as to the safety of the premises. "A mere
naked license or permission to enter or pass over an estate will not
create a duty or impose an obligation on the part of the owners or
persons in possession to provide against danger of accident""*^
The licensee must take the permission with concommitant condi-
tions, and, it may be, perils."* "Suppose the owner of land near
the sea gives another leave to walk on the edge of the cliff, surely
it would be absurd to contend that such permission, cast upon the

849 Ante, p. 196. A person who steals a ride on a train is not a passenger.
Pennsylvania R. Co. v. Price, 96 Pa. St 256; Mason v. Chicago, St P., M. &
O. Ry. Co., 89 Wis. 151. 61 N. W. 300; Barney v. Hannibal & St. J. R. Co. (Mo.
Sup.) 28 S. W. 1069; Bricker v. Philadelphia & R. R. Co., 132 Pa. St. 4, 18 AtL
983; Atlanta & C. Air-Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550; Cleve-
land, C, C. & St L. Ry. Co. v. Tartt, 12 C. C. A. 625, 6i Fed: 830; lUinois Cent
Ry. Co. V. Lee, 71 Miss. 895, 16 South. 349; International & G. N. R. Co. v.
De Bajligethy (Tex. Civ. A pp.) 28 S. W. 829; McGuire v. Vicksburg, S. & P.
R. Co., 46 La. Ann. 1543, 16 South. 457.

84» Ante, c. 2, p. 189.

800 Ante, p. 196. Emery v. Minneapolis Industrial Exposition, 56 Minn. 460,
57 N. W. 1132; Kansas City, Ft S. & M. R. Co. v. Berry, 53 Kan. 112, 36 Pac.
53; Everett v. Oregon, S. L. & U. N. Ry. Co., 9 Utah, 340, 34 Pac. 289.

«Bi Bigelow, C. J., in Sweeny v. Old Colony & N. R. Co., 10 Allen, 372.

8B2 Evansville & T. H. R. Co. v. Griffin, 100 Ind. 221; Reardon v. Thomp-
son, 149 Mass. 267, 21 N. E. 369; Byrne v. Railroad Co., 104 N. Y. 362, 10 N.
E. 539.

Oh. 12] ESSENTIAL ELEMENTS. 891

former the burden of fencing." ^''^ And, if a landlord allows tenants
to use the flat roof for drying clothes, he is not liable if one of them
fall from the roof because of a defect in the iron rail around it."^*
It would seem to be a generally accepted doctrine that firemen and
policemen are mere licensees, and that the owners of buildings are
not liable to them when injured therein in the discharge of their
duties.^ ^"^ The owner of premises may not, however, actively injure

»«» TounseU v. Smythe, 7 C. B. (N. S.) 731; Barnes v. Ward, 0 C. B. 39il;
Hardcaatle v. Railway Co., 4 Hiu-L & N. 67; Bolch v. Smith, 7 Hurl. & N. 736;
Scott V. London Docks Co., 11 I-aw T. (N. S.) .383; Hargreaves v. Deacon, 25
Mich. 1 (pitfalls in highways and private property); Maonner v. CarroU, 46
Md. 193.

3 5* Ivay V. Hedges, 9 Q. B. Dlv. 80. Cf. BiUows v. Moors, 162 Mass. 42, 37
N. B. 750. So, in a water-closet case, plaint iflP, going to it in accordance with
permission of owner of the soil, stumbled and caught his arm in moving ma-
chinery, and could not recover. Bolch v. Smith, 7 Hurl. & N. 736. Cf. Sweeny
V. Barrett, 151 Pa. St. 000. 25 Atl. 148; post, note 362. Bt vide Comman v.
Bastern Counties Ry. Co., 4 Hurl. & N. 781; Coupland v. Hardingham, 3
Camp. 308; Jarvis v. Dean, 3 Bing. 447; Jordin v. Crump, 8 Meea. & W. 782;
Gautret v. Egerton, L. R. 2 C. P. 371; Burchell v. Hickisson, 50 Law J. Q.
B. 101; Batchelor v. Fortescue, 11 Q. B. Div. 474. A bare licensee, according
to the American cases, goes on another's land or property at his own risk,
and must take the same as he finds it Reardon v. Thompson, 149 Mass. 267,
21 N. E. 300; Truax v. Chicago, St. P., M. & O. Ry. Co., 83 Wis. 547, 53 N.
W. 812; CahiU v. Lay ton, 57 Wis. 600, 16 N. W. 1; Benson v. Baltimore Trac-
tion Co., 77 Md. 53."), 20 Atl. 973; Gibson v. Leonard, 143 111. 182, 32 N. E.
182; Pelton v. Schmidt, 97 Mich. 231, 56 N. W. 689; Stevens v. Nichols, 155
Mass. 472, 29 N. E. 1150 (distinguishing Holmes v. Drew, 151 Mass. 578, 25 N.
B. 22); Hector v. Boston Electric Light Co., 101 Mass. 558, 37 N. B. 773; De
Gray V. Aiken, 43 La. Ann. 796, 9 South. 747; Stcrger v. Van Sicklen, 132 N.
Y. 499, 30 N. E. 987 (following Larmore v. Crown Point Iron Co., 101 N. Y.
391, 4 N. E. 752) ; Plummer v. Dill, 150 Mass. 426, 31 N. E. 128; Walker v.
Winstuuley, 155 Mass. 301, 29 N. E. 518.

355 Low V. Grand Trunk R. Co., 72 Me. 313; caiws coUected in 11 N. Y. Law
J. 690; Learoyd v. Godfrey, 138 Mass. 315; Boohler v. Dnniols (R. I.) 29 Atl.
6. Gibson v. Leonard, 143 lU. 182, 32 N. B. 182, affirming 37 111. App. 344;
Woodruff V. Bowen, 136 Ind. 431, 34 N. E. 1113. Where plaintiff runs across
a lot to eoctinguish a fire, its owner owes him no duty to ke<»p premises safe.
He cannot recover if he fall into a hole. Kohn v. Lovett, 44 Ga. 251. No
liability to a constable serving civil writ Blatt v. McBarron, 161 Mass. 21, 36
N. E. 468; Plummer v. Dill, 150 Mass. 420, 31 N. E. 128, and cases cited.
But as to a policeman lawfully entering a building it is otherwise (Parker v.

892 NKGUGKNCK. [Ch. 12

such a licensee; ''*• and if the licensee comes upon the premises
by virtue of express permission, even though it may not amount to
an invitation, he is entitled to be warned of any hidden danger in
the premises known to the owner or occupipr.*^^

The doctrine of invitation, express or implied, applies, at least
so far as active peril goes, to those cases where one by his conduct
has induced the public to use a way in the belief that it is a street
or public way, or where it has been recognized as a crossing.' °® In
such cases all persons have a right to use it, and are entitled to the
exercise of care.*'" Thus, if a railroad company knows of the dan-
Barnard, 135 Mass. IIG); especially if at request of tenant to make a proper
arrest (Learoyd v. Godfrey, 138 Mass. 315).

«66 Bird V. Holbrook, 4 Bing. 628. Cf. Sullivan v. Boston & A. R. Co., 150
Mass. 378, 31 N. E. 128.

«67Bolcb V. Smith, supra (i)er Chaunell and Wilde, BB.); Corby v. Hill, 4
C. B. (N. S.) 556 (per Wllles. J.); Bramwell, B., In Southcote v. Stanley, 1 Hurl.
& N. 247, 25 Law J. Exch. a39; Farrant v. Barnes, 11 C. B. (N. S.) 553, 31 Law
J. C. P. 137. There is said to be a resemblance between this class of cases
and those founded on the rule as to voluntary loans and gifts. There is no
remedy against lender or giver for damages sustained from the loan or gift,
<»xcept in the case of unusual danger known to and concealed by the lender or
giver. Willes, J., In Indermaur v. Dames, L. R. 1 C. P. 274, citing Macar-
thy V. Younge, 6 Hurl. & N. 820, 30 Law J. Exch. 227. And see Gautret v.
Egerton, 2 C. P. 371.

8B8 Johnson v. Lake Superior Terminal & Transfer Co., 86 Wis. 64, 56 N. W.
161. (Vide cases collected on page 69, 86 Wis., and page 161, 56 N. W.) If
a ralh'oad company has knowingly acquiesced for a long time in the tise of
private cro.^slng or other customary path on its right of way, without objec-
tion or attempt to prevent, it mast exercise due care with reference to such
usage. Clamplt v. Chicago, St P. & K. C. R. Co.. 84 Iowa, 71-74, 50 N. W.
673 (collecting cases). Cf. Barber v. Richmond & D. R. Co., 34 S. C. 444, 13 S.
E. 630, and Siniborn v. Detroit, B. C. & A. R. Co., 91 Mich. 538, 52 N. W. 153.
Et Tide Gurley v. Missouri Pac. Ry. Co., 122 Mo. 141, 26 S. W. 953; Cahin v.
Cincinnati, N. O. & T. P. Ry. Co., 92 Ky. 345, 18 S. W. 2; Reifsnyder v. Chi-
cago, M. & St. P. Ry. Co. (Iowa) 57 X. W. 692; Maxey v. Missouri Pac. Ry.
Co., 113 Mo. 1, 20 S. W. 654. Cf. Alabama G. S. R. Ck). v. Linn (Ala.) 15 South.
508; Illnois Cent. R. Co. v. Beard, 49 111. App. 232; 0*Xell v. Duluth, S. S. &
A. Ry. Co., 101 Mich. 437, 59 N. W. .836; Stewart v. Cincinnati, W. & M. R,
Co., 89 Mich. 315, 50 N. W. 852; LiUstrom v. Northern Pac. R. Co., 53 Minn.
464, 55 N. W. 624 (following Kelly v. Southern Minnesota Ry. Co., 28 Minn.
98, 9 N. W. 588).

860 Sweeny v. Old Colony & N. R. Co., 10 Allen, 368; Holmes v. Drew, 151

Ch. 12] ESSENTIAL ELEMENTS. 893

gerouB practice of throwing mail bags from a moving car to the
depot platform, it is liable to an ignorant licensee walking there-
^ji 860 j)^^ jf j^ stranger to the company stands on its land to see
a crane catch a mail pouch he is entitled to no duty as to keeping
the crane in safe condition.**^ And, generally, premises used by
many people must be kept safe with reference to such constant use.
Such places are presumed to be safe.*"^ While the line in the Eng-
lish cases as to mere licensees would seem to be quite clearly drawn,
the line of distinction between these and subsequent classes of per-
sons is by no means distinct, and the term "licensee'' is often applied
to peraons of the following class:

Innted Persons.

The leading case as to the injury done to persons incited or spe-
cially induced by the conduct of the owner of the premises to go
thereon is Inderraaur v. Dames.'®' In this case the plaintiff went
on tlie defendant's premises (a sugar refinery), in which he (or his
employer) and the defendant both had an interest, and fell into a

Mass. 578, 25 X. E. 22. But cf. Hounsell v. Smith, 6 Jur. (N. S.) 897; Brad-
ford V. Boston & M. II. Co., 160 Mass. 392, 35 N. E. 1131; Ohio & M. Ry. Co.
V. Simms, 43 111. App. 200; Snow v. Fitolibiirg R. Co., 49 Am. Rep. 40.

860 Galloway v. Chicago, M. & St. P. Ry. Co., 50 Minn. 348, 57 N. W 10r>S.

8«i Poling V. Ohio River R. Co., 38 W. Va. 645, 18 S. K. 782.

»«2 As to water closets, Toomey v. Ix)ndon, B. & S. C. Ry. Co., 3 0. B.
(N. S.) 146. Cf. Boleh v. Smith, 7 Hurl. & X. 730; Sweeny v. Barrett (Pa Sup.)
25 AtL 148; ante note ;i51. A platform around weighing scales, Comman v.
Eastern Counties Ry. Co., 4 Hurl. & N. 781. Platforms generally, Longmore
V. Great Western Ry. Co., 19 C. B. (N. S.) 183; James v. Missouri Pac. Ry. Co.,
107 Mo. 480, 18 S. W. 31; New York, C. & St L. R. Co. v. Mushrush (Ind. App.)
37 N. E. 954; Texas & P. Ry. Co. v. Best, 06 Tex. 116, 18 S. W. 224; Dilling-
ham V. Teeling (Tex. Civ. App.) 24 S. W. 1094; Redigan v. Boston & M. U.
Co. (Mass.) 28 N. E. 1133. Steps in common use, Grafter v. Metropolitan
Ry. Co., L. R. 1 C. P. 300; Bennett v. Railroad Co., 102 U. S. 577. And
see McDonald v. Union Pac. Ry. Co., 42 FcmI. .■>79; Id., 152 U. S. 2(;2, 14 Sup.
Ct. 619. The use for lowering baggage into a steamship of the same com-
panion way used by passengers and their friends in i)assiug up and down,
where the ship has more than one that could be so used, is want of care for
which the ship is liable to such a person injured by the fall of a trunk caused
by its handle breaking while being so lowered. Unitus v. The Dresden, 02
Fed. 438. Unused way, damage to employ^ by engine in motion, no recovery,
O'Donnell v. Duluth, S. S. & A. Ry. ( o., .sr> ^lioh. 174, 50 N. W. 801.

»«8 Indermaur y. Dames, L. R. 1 C. P. 274-288, 2 C. P. 311.

894 NEGLTGENCB. [Ch. 12

dangerous hole or chute. It was held that an action lay on his part
against the defendant for breach of duty towards him in suffering
the hole to be unfenced. Willis, J., pointed out that the protection
would extend to customers, and that "the class to which custom-
ers '°* belong includes persons who go, not as mere volunteers or
licensees or guests'®'^ or servants or persons whose employment is
such that danger may be considered as bargained for, but who go
upon business which concerns the occupier, and upon his invitation,
express or implied." '®® The owner of a building occupied by a ten-
ant owes him and those employed by such tenant the duty not to
expose them to a dangerous condition of the place which reasonable
care on his part would have prevented.^*^ It is not necessary, how-

««* Brosnan v. Sweetser, 127 Ind. 1, 26 N. E. 555. Where plaintiff was in
a store to make purchase, and was injured. Being a stranger In the store,
"she had a right to rely upon the floor's beii^g in good, safe condition. She
was not called upon to ajiticipate danger, and to be loolslng and listening for
dangerous signals, though it was her duty to make use of her faculties and
guard against and avoid danger. The warning should be such as would un-
der the circumstances be reasonably calculated to attract attention and warn
of danger. When a person puts a dangerous pitfall at a place where he in-
vites people to come, he is under stronger obligations to guard it, and more
yigilance is required in the guarding of it, than if it was placed at some
point where the public are not invited to come and are less liable to visit.
Hendricken v. Meadows, 154 Mass. 599, 28 N. E. 1054; Clopp v. Mear, 134
Pa, St. 203, 19 Atl. 504; Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978;
Freed v. Cameron, 4 Rich. Law, 228; O'Callaghan v. Bode, 84 Cal. 489, 24 Pac.
269 (excursion wharf); Campbell v. Portland Sugar Co., 62 Me. 552 (excur-
sion wharf). If, however, plaintiff comes Into defendant's store, without in-
vitation, on his own business, and is injured by a fall into the elevator shaft
in a part of the store unfrequented by visitors, he is a bare licensee. Paris
V. Hoberg, 134 Ind. 209, 33 N. E. 102a

865 Southcote V. Stanley, 1 Hurl. & N. 247; Plummer v. DiH, 156 Mass.
426, 31 N. E. 128; Hart v. Cole, 156 Mass. 475, 31 N. E. 614 (see cases col-
lected on page 479, 156 Mass., page 644, 31 N. E.); Woolwlne's Adm'r v.
Chesapeake & O. R. Co., 36 W. Va. 329, 15 S. E. 81; Webb, Pol. Torts, 641, 6A2.

866 Evansville & T. H. R. Co. v. Griffin, 100 Ind. 221; Howe v. Ohmart,
7 Ind. A pp. 32, 33 N. E. 466.

367 Holmes v. Drew, 151 Mass. 578, 25 N. E. 22; Leydecker v. Biintnall, 158
Mass. 292, 33 N. E. 399; Crane Elevator Co. v. Lipi>crt, 11 C. C. A. 521,
03 Fed. 94. However, it was held, in an action against a landlord for in-
juries to a child by the breaking of a platform used for hanging out washing,
where it appeared that the platform was in the same condition when the acci-

Oh. .12] ESSENTIAL ELEMENTS. 895

ever, that there should be privity of contract between the parties
to the action. Thus, where a laborer was killed by falling from a
defective staging which the defendant had contracted with his em-
ployer to furnish, recovery of statutory damages was allowed.^"*
The class of invited licensees includes persons generally having a
light to be on the premises where the injury is received, as where
one was injured by placing materials on a private road which he
was entitled to use.^^" A passenger wrongfully ejected from a

dent occurred as when plaintiff^s father hired the house as it was, and that
Its defects could have been discovered by him by exercising reasonable care,
plaintiff cannot recover. Moynlhan v. AUyn, 1G2 Mass. 270, 38 N. E. 497.

»«8 Bright V. Bamett & R. Co., 88 Wis. 299, C>0 N. W. 418, citing, as to im-
plied invitation, inter alia, Devlin v. Smith, 89 N. Y. 470; Gilbert v. Nagle.
118 Mass. 278; Elliott v. Pray, 10 Allen, 378; Pickard v. Smith, 10 C. B. (N.
S.) 470; Holmes v. North Eastern K. Co., L. R. 4 Exch. 254; Conghtry v. Globs
Woolen Co.. 56 N. Y. 124; Mulchey v. Methodist Religious Soc., 125 Mass. 4^7.
And as to the doctrine of Winterbottom v. Wright, 10 Mees. & W. 109, inter
alia, Hayes v. Philad^phia & R. Coal & Iron Co.. 150 ^lass. 457, 23 N. E.
225; EUiott V. HaU, 15 Q. B. Div. 315; Bennett v. Railroad Co., 102 U. S.
577; New Orleans, M. & C. R. Co. v. Hanning, 15 W^aU. 649; Cooley, Torts,
004-607; Whart. Neg. H 349-352; Corby v. Hill, 4 C. B. (N. S.) 562; Powers
V. Harlow, 53 Mich. 507, 19 N. W. 257; Campbell v. Portland Sugar Co., 62
Me. 552; Van Winkle v. Insurance Co. (N. J. Sup.) 19 Atl. 472; 16 Am. & Eng.
Enc. Law, 413, 414; Heaven v. Pender, 11 Q. B. Div. 503; Francis v. Cockrell,
L. R. 5 Q. B. 184-195.

869 Corby v. HlU, 4 C. B. (N. S.) 556 (see Channell, B., In Bolch v. Smith,
7 Hurl. & N. 736); Krey v. Schlussner, 62 Hun, 620, 16 N. Y. Supp. 695.
An employ 6 of a railroad corporation who is engaged in delivering a car to
another railroad corporation upon the latter*s tracks, in the regular course
of business between the two corporations, is not a mere licensee. Turner v.
Boston & M. R. R., 158 Mass. 261, 33 N. E. 520. Cf. Montgomery's Ex'rs
V. Alabama G. S. R. Co., 97 Ala. 305, 12 South. 170; Louisville & N. R. Co.
V. Hairston, 97 Ala. 351, 12 South. 299. Child a licensee, see Mexican Nat.
Ry. Co. V. Crum, 6 Tex. Civ. App. 702, 25 S. W. 1126. Employes of a rail-
road company have ordinarily no authority by invitation or employment or
permission to make a stranger to the company a passenger or licensee to
whom duty of care is due. Id. ; Cooper v. Lake Erie & W. R. Co., 136 Ind. 306,
36 N. E. 272; Houston, C. A. & N. Ry. Co. v. Boiling, 59 Ark. 395, 27 S. W.
492. But see Buck v. Power Co., 108 Mo. 179, 18 S. W. 1090, affirmed 46
Mo. App. 555. Persons loading and unloading ears are entitled to exercise of
care. Chadderdon v. Michigan Cent. R. Co., 100 Mich. 293, 58 N. W. 998; Inter-
national & G. N. Ry. Co. V. Hall (Tex. Civ. App.) 25 S. AV. 52; Toledo, St. L. &
EL a R. Co. V. Hauck, 8 Ind. App. 307, 35 N. E. 573; Conlan v. Railroad Co., 74

896 NEQLIGENGS. [Oh. 12

train is not guilty of contributory negligence unless he fails to get
off the track at the earliest practicable opportunity that a reason-
ably prudent man would have discovered and seized.*'*

Test of Mutuality,

An invitation to go on the premises of another imposes a duty to
prevent harm to a person accepting it. Such invitation may be ex-
press or implied, and depends upon mutuality of interest. Invita-
tion, therefore, in the technical sense, differs from invitation in the
ordinary sense, implying the relation of host and guest.*'^ "It is
well settled that to come under an implied invitation, as distin-
guished from a mere license, the visitor must tome for a purpose
connected with the business in which the occupant is engaged, or
which he permits to be carried on there. There must at least be
some mutuality of interest in the subject to which the visitor's busi-
ness relates, although the particular thing which is the object of
the visit may not be for the benefit of the occupant." *'* For example,
if a person called at the oflftce of a manufacturer's establishment for,
and is granted, permission to see an employ^, and while searching
for such employ^ is injured by the machinery, the peril of which
was hidden, there can be no recovery. **To requirv? the proprietor
of a steamboat, factory, or a mill, conducted in the usual manner,
whenever a man should ask permission to see an employ^ engaged
in his duties, to anticipate that such pei-son might become involved

Hun, 115, 26 N. Y. Supp. 659, distinguishing Nicholson v. Railroad Co., 41 N.
Y. 525; De Bolt v. Railway Co., 123 Mo. 496, 27 S. W. 575 (where, however,
plaintiff's own negligence was held to cause his death). But if, after the car
has been loaded, plaintiff get onto the car to remove a chute, he is a mere
licensee or trespasser, and defendant is not liable for an accident caused
negligently but not wlUfuHy. Cleveland, C, C. & St. L. Ry. Co. v. Stephen-
son (Ind. Sup.) 37 N. E. 720.

37 0 Ham V. Canal Co., 155 Pa. St 548. 26 Atl. 757, explaining Id., 142 Pa.
St. 617, 21 Atl. 1012. One who Is wrongfully ejected from train has no right
to travel on the railroad trades, if there is any other safe and convenient
route. Verner v. Alabama G. S. R. Co. (Ala.) 15 South. 872.

371 Campb. Neg. § 44.

372 Plummer v. DiU, 156 Mass. 426, 427, 31 N. E. 128. And see Pelton v.
Schmidt (Mich.) 62 N. W. 552 (teamster delivering goods); Pol. Torts, p. 427;
Whart. Neg. § 350; Southcote v. Stanley, 1 Hurl. & N. 247, criticised in Cleric
& L. Torts, 59; Pol. Torts, p. 427.

Ch. 12] ESSENTIAL ELEMENTS. 897

in some dangerous machinery, hidden or open, would be to exact
too high a degree of diligence; but the presumption should be in-
dulged that the person making the inquiry is acquainted with the
machinery, its construction and position, and needs no attendant,
or otherwise he would have made a request to that effect/"^' It
has, however, been held that whore a former student of a school,
in accordance with an invitation sent out with the approval of the
college authorities, attended a meeting of a society of which he was
a member, and, while leaving the room, fell into an opening in the
floor of the hallway, only partially covered, he could recover for in-
jury caused thereby.^^* The solution of the difficulty probably lies
in the division of the subject into express and implied invitation,
and in limiting the mutuality of the rule to the latter cases only.^'*

268. While normally a breach of a contract gives rise to
a cause of action ex contractu, a contract may
impose a duty on the part of the defendant, as
party to it, for the violation of which the plaintiff
may recover ex contractu or ex delicto, at his op-
tion. The common-law liability, however, within
the limits allowed by law, is regulated by the terms

•TiMaltbie, J., in Galveston OU Co. v. Morton, 70 Tex. 400, 405, 7 SL
W. 756. And see Woolwine's Adm'r v. Chesapeake & O. Ry. Co.,* 36 W-
Va. 329, 15 S. E. 81. So in Benson v. Baltimore Traction Co., 77 Md.
536, 26 Atl. 973, one of a class of boys viewing machinery by defendant's
permission fell into an unfenced pit of hot water. Because of absence
of mutuality of interest, the permission was hold not to be an invitation, and
recovery was denied. And see Laclvat v. Liitz, 04 Ky. 287, 22 S. W. 21S;
St«-ger V. Van Sicklcn, 132 N. Y. 499, .JO N. E. 987; Larmore v. Crown Point
Iron Co., 101 N. Y. 391, 4 N. E. 752; Walker v. Winstanley, 155 Mass.
301, 29 N. E. 518. See, also, Gillis v. Pennsylvania R. Co., 59 Pa. St.
129; Redigan v. Boston & M. R. Co., 155 Mass. 44, 28 N. B. 1133; Metcalfe
V. Cunard S. S. Co., 147 Mass. 66, 16 N. E. 701; Parker v. Portland Pub. Co.,
69 Me. 173; Sullivan v.. Waters, 14 Ir. Com. Law. 4(i0.

»T4 Howe V. Ohmart, 7 Ind. App. 32, 33 X. E. 44W. And see Davis v. Central
Congregational Soc, 129 Mass. 367; Soutlicote v. Stanley, 1 Hurl. & N. 247;
Plummer v. Dill, 156 Mass. 426, 31 N. B. 128; l*ol. Torts, p. •427.

87 5 34 Am, Law Reg. 19<5, 202, citing Bigelow, Torts, 326; Cooley, Toits, (j04r
607; Plummer v. Dill, 156 Mass. 426. 31 N. E. 128.

LA W OP TORTS— 57

898 NEGLIGENCE. [Ch. 12

of the contract, and a party to such contract, being
a party plaintiff, is determined in his cause of ac-
tion by the terms of that contract, so far as the la^w
will sustain them.

While normally, as has been seen, a breach of contract gives rise
to an action ex contractu, the common-law courts were liberal in
allowing the use of an action ex delicto,^ ^* and especially where
there was negligence in the performance of such contract.

All persons contracting to do certain things owe a duty not to
injure the person or property of another while in the performance
of the contract. That duty does not necessarily depend on, or grow
out of, the contract. Thus, if one undertook the construction of a
ditch so as to drain the water off another's land, but, instead, the
ditch was constructed so as to gather surface water and empty it
on his land, the latter may maintain an action of tort for the dam-
age resulting from the negligence, and is not confined to an action
for a breach of contract* ^^ An action for damages, on a similar
principle, may be maintained for failure to discharge duty imposed
by contract, — to fence a railway track and to maintain guards and
gates, — whereby an adjoining landowner's stock is killed.*^* The

370 Ante, p. 25; Fromm v. Ide, 68 Hun, 310, 23 N. Y. Supp. 56.

377 stock V. City of Boston, 149 Mass. 410, 21 N. E. 871. Tort will lie for
negligent construction or maintenance of a reservoir, though petition is the
remedy given for injuries resulting from a proper exercise of the authority of
the statute for its construction. Aldworth v. City of Lynn, 153 Mass. 53, 26
N. E. 229. As to re<'overy in the same proceeding of a cause of action sound-
ing in tort and a cause of action in contract, because arising from the same
transaction, see Craft Refrigerating Mach. Co. v. Quinnlpiac Brewing Co., (33
Conn. 551, 29 Atl. 76; Central Vermont R. Co. v. Soper, 8 C. C. A. 341, 59 Fed.
879; Whitworth v. Darbishire, 5 Reports, 198. As to contract and fraud, see
Steluam v. Bell, 7 Misc. Rep. 318, 27 N. Y. Supp. 905. Contract not fraud or
conversion. Stafford v. Azbell, 6 Misc. Rep. 89, 26 N. Y. Supp. 41. The ac-
tion against an abstractor is ex contractu. Wacek v. Frink, 51 Minn. 2S2, 53
N. W. 633. Generallj', as to election to sue ex contractu or ex delicto, see
City of Elgin v. Joslyn, 130 111. 525, 26 N. E. 1090; Aldine Manuf'g C^. v.
Barnard, 84 Mich. 632, 48 N. W. 2S0; Parker v. Knox, 60 Hun, 550, 15 N. Y.
Supp. 256; Barndt v. Frederick, 78 Wis, 1, 47 N. W. 6; People v. Wood, 121
N. Y. 522, 24 N. E. 952; Nysowander v. Lowman, 124 Ind. 584, 24 N. E. .355;
Tcwnsljip of Buckeye v. Clark, 90 Mich. 432, 51 N. W. 528.

378 Toledo, St. L. & K. C. R. Co. v. Burgan, 9 Ind. App. 604, 37 N. B. 31;

Ch. 12] ESSENTIAL ELEMENTS. 899

duty of a railroad company, under such a contract, is a continuing
one, running with the hmd.'*''

Ajyplied to Master and Servant.

The duty owed the servant, for example, in respect to the condi-
tion of premises and machinery, has been supposed to exist by
virtue of contract.^^^ But duty, if derived f^om contract at all, is
only implied in it; and, if new terms are to be inserted into the
agreement, every duty which the master owes might be treated as
contractual, and thus the servant might sue the master in contract
for assault and battery. The universal trend of authority on analo-
gous cases is to regard such duty as not contractual, but as of the
general law. It does not appear why the duty due from a carrier
to a passenger should be under the general law, and that due a
servant by the carrier should be contractual, where both the passen-
ger and servant are injured by the same accident.'®^

Applied to Telegraph Companies,

A telegraph or telephone company, even if not held to the same
duties, or to the performances of duties in the same manner, as a
common carrier,*®* is engaged in a quasi public employment, and
owes a recognized public duty.'®* Such a company is bound to exer-
cise due diligence both to correctly *** and promptly **' transmit

Toledo, St. L. & K. C. R. Co. v. Feustemaker, 3 Ind. App. 151, 29 N. B. 440;
Toledo, St L. & K. C. U. Co. v. Cosand, 6 Ind.. App. 222, 33 N. E. 251.

S7» Midland R. Co. v. Fisher, 125 Ind. 19, 24 N. E. 756; Terre Haute & I.
R. Co. v. Schaefer, 5 Ind. App. 86, 31 N. E. 557; Lake Erie & W. R. Co. v.
PlBhback, 5 Ind. App. 403, 32 N. E. 346; Bond v. Evansville & T. H. R. Co.,
100 Ind. 301.

««o Albro V. Jaquith, 4 Gray (Mass.) 99; Coombs v. New Bedford Cordage
Co., 102 Mass. 572.

«»i Blgelow, Lead. Cas. 707; Jervis, C. J., in Marshall v. York, N. & B. Ry.
Co., 11 C. B. 655. A plaintiff injured by the wrongful act of defendant in
nmning trains faster than the ordinance allowed is determined as to his right
by the ordinance, and not by the contract of employment Bluedorn v. Mis-
BOuri Pac. R. Co.. 108 Mo. 439, 18 S. W. 1103.

»»2 Ante, p. 208, "Discharge of Torts by Contract before a Wrong."

»83 Ayer v. W. U. Tel. Co., 79 Me. 493, 10 Atl. 495; Dorgan v. Telegraph
Co., 1 Am. Law T. (N. S.) 406, per William, J.

»84 Cahn V. W. U. Tel. Co., 48 Fed. 810 (where there was no liability); White
V. W. U. Tel. Co.. 14 Fed. 710; .Tones v. W. U. Tel. Co., 18 Fed. 817. And
Bee post, p. 9.')9, "Damages."

886 Fleischner v. Pacific Postal Tel. Co., 55 Fed. 73a

900 NEGLIGENCE. [Ch. 12

'the message and to deliver it to the person to whom it is sent.'**
But it owes no duty to a person not a party to the contract, when
there is no information, direct or indirect, that the contract is for
his benefit.^ ®^ However, the measure of damages for breach of duty
to the sender of a message is rather that of contract, not of torts.*®*
Accordingly, the law fit torts would seem to apply to the recipient
of the message, who is a stranger to the contract, rather than to the
sender, who is a party to if •

Applied to BaHmenta.

An action in tort, for negligence, lies against a bailee for breach
of recognized duty.'"®

The bailee is bound to take care of property intrusted to him. If,
without negligence on his part of which the bailor can complain^
and without abuse of the terms of this bailment, damage ensues,
there can be no recovery. His liability continues only during tht*
period '"^ of the contract.**"'

«8« W. U. Tel. Co. V. Timmons, 93 Ga. 345, 20 S. E. 049; W. U. Tel. Co. r.
Bates, 93 Ga. 352, 20 S. E. 639.

3 87 w. U. Tel. Co. V. Wood, 6 C. C. A. 432, 57 Fed. 471. And see W. U. Tel.
(;o. V. Fore (Tex. Civ. App.) 2G S. W. 783.

388 Garrett v. W. U. Tel. Co. (Iowa) 58 N. W. 1064; W. U. Tel. Co. v. Hall.
124 U. S. 444, 8 Sup. Ct. 577. Cf. Play ford t. United Kingdom Electric Tel.
('o., L. R. 4 Q. B. 706; Dickson v. Renter's Tel. Co., 3 C. P. Div. 1. As to
remoteness of damage, see Calm v. W. U. Tel. Co., 40 Fed. 40; Id., 1 C. C. A.
107. 48 Fed. 810. Where plaintiff, through dolay in receivln<r a telegram,
made a journey which he would not have made until later if it had been re-
(!eivcMi, he is entitled to recover only the increased expenses of the premature
journey. W. U. Tel. Co. v. Bates, 93 Ga. 352, 20 S. E. 639; ante, c. 5, "Senti-
mental Damages."

889 Xew York & W. P. Tel. Co. v. Dry burg, {io Pa. St. 298. The sendee of a
telegraphic message cannot maintain an action against a telegraph company
for delay or nondelivery of a message, in the absence of a showing that It
was sent by his agent or for his benefit, and that the company had notice
that it was so sent. Butuer v. W. U. Tel. Co. (Okl.) 37 Pac. 1087.

8»o As to burden of proof, see Wintringliam v. Hayes, 144 N. Y. 1, 38 N. E.
999; Townsend v. Rich (Minn.) 60 N. W. 545. A mere depositary is answerable
only for such gross negligence as is equal to fraud. Foster v. Bank, 17 Mass.
479; Sodowsky v. M'Faland, 3 Dana (Ky.) 204.

891 Brown v. Hitchcock, 2 Williams (Vt.) 452.

882 A bailee, after expiration of hiring, and pending return of property

Ch. 12] ESSENTIAL ELEMENTS. 901

While failure to return property involved in a bailment may give
rise to an action in trover,^®^ the loss of a hired chattel while in the
possession of the hirer may be actionable as negligence.'®* But
mere failure to return the property is not negligence, unless there
be proof of carelessness on the part of the bailee. Thus, propei-ty
may be stolen,'®^ an animal may die, and no liability attach to
the bailee. As has been shown, Coggs v. Bernard '°^ established the
law as to the degrees of care, respectively, required in various kinds
of bailments. Accordingly, gross negligence may make liable gratui-
tous bailees of securities left as a special deposit, stolen by a cash-
ier.'°^ And, on the other hand, assumpsit may be maintained if the
destruction of the property involved in the bailment was occasioned
by actionable negligence.'®'

What the terms of a particular bailment may require is partially
subject to control by the parties, but also, in large measure, to regu-
lation by the state. It is not feasible in this book to undertake
the discussion at length of the subjects of innkeepers, warehouse-
men, and the like.*®® The general principles involved, however,
may be well illustrated in the case of common carriers.

would not seem to be liable for faUure to Insure. Young v. Leary, 135 N. Y.
r)G9, 32 N. E. GOT.

388 American Preservers* Co. v. Dresoher, 4 Misc. Rep. 482, 24 N. Y. Supp.
361. As to liability of a miller, see Wallace v. Canaday, 4 Sneed (Tenn.) 364.
A warehouseman need not show the precise manner in which the loss oc-
curred. Lichtenliein v. Boston & P. R. Co., 11 Cush. (Mass.) 70.

8»4 U. S. V. Yukers, 9 C. C. A. 171, 60 Fed. 641.

396 Cass V. Boston & L. R. Co., 14 AUen (Mass.) ^8. Cf. Chenowlth v.
Dickinson, 8 B. Mon. (Ky.) 156.

«»7 2 Ld. Ravm. 009.

398 Preston v. Prather, 137 U. S. 604, 11 Sup. Ct 162; Gray v. Merriam,
148 IlL 179, 35 N. E. 810. Cf. Hibernia Bldg. Ass'n v. McGrath, 154 Pa.
St 296, 26 Atl. 377. Where defendant borrowed coins from plaintiff for ex-
hibition in its museum, it is liable for their loss by reason of its ^oss negli-
gence, though it paf?sed a resolution that it would not be responsible in any
way, and so notified plaintiff. Smith v. Library Board of City of Minneap-
olis (Minn.) 59 N. W. 979.

380 Zell V. Dunkle, 156 Pa. St. 353, 27 Atl. 38. And see Ballon v. Earle, 17
R. I. 441, 22 Atl. 1113.

400 The law of innkeepers is a branch of the law bailments. An inn Is "a
house where a traveler is fumishod with everything he has occasion for
while on his way." Thompson v. Lacy, 3 Bam & Aid. 283. A boardinc

902 NEGLIGKNCE. [Ch. 12

Applied to Camera.

There can be no question as to the right of one injured in person
or property by a common carrier to sue ex delicto or ex contractu;
that is, to sue on the common-law duty arising from the relation
ship, or on the contract entered into.*^^ And, when he sues ex
delicto, he does not sue on the agreement, but on the common-law duty

house is not an Inn. Dansey v. Richardson, 3 El. & Bl. 144. But a restaurant
keeper is Uable, In the absence of due care, for the loss of a customer's wraps
left in his charge. Bunnell v. Stern, 25 N. E. 910, 122 N. Y. 539, and Bird
V. ETd-ard (Com. PI. N. Y.) 23 N. Y. Supp. 1008, foUowed. Buttman v.
Dennett (Com. PI. N. Y.) 30 N. Y. Supp. 247. An Innkeeper is by common
law responsible for the loss in his inn (infra hospitium) of the goods of a
traveler who is his puest, except when the loss arises from the wrong of
the guest, the act of God, or of the public enemy. Berry, J., in Lusk v.
Belote, 22 Minn. 468; 2 Kent, Comm. 592-597; Shaw v. Berry, 31 Me. 478;
Sibley V. Aldrich, 33 N. H. 553; Hulett v. Swift, 33 N. Y. 571; Wilkins v.
Earle, 44 N. Y. 172; 1 Chit. Cont. (11th Am. Ed.) G74-G77, and notes. For the
innkeeper is bound in law to keep his guest*s goods and chattels within his
inn without any stealing or pui*loinlng; and it is no excuse for the inn-
keeper .to say that he delivere<l the guest the key of the chamber in which
he is lodged, and that he left the chamber unlocked. But the innkeeper is
not liable if his guest's horse has been put in pasture by his owner's request,
and Is stolen; for this is not infra hospitium. Calye's Case, 8 Coke, 32;
Smith, Lead. Cas. (H. &. W.*s Ed.) *194, and notes. Commonly, modern
statutes provide for modification of the liability, and for the discharge of
liability on the part of the landlord, on compliance with st*itutory require-
ments of posting notice that all valuables must be left in the safe of the oflSce
of the inn. Under such a statute a guest at a public inn may retahi personal
custody of necessary wearing apparel; and jewelry worn dally by her need
not lie deposited with the innkeeper, when not In use, to make him liable tor
Its loss by fire. (20 Pac. 1099, affirmed) Fay v. Pacific Imp. Co., 93 Cal. 253, 28
Pac. 1M3. An Interesting article on the liability of Innkeepers for the commis-
sion of illegal acts on their premises, with numerous English authorities. J.
P., reprinted In 23 Ir. I^iw T. 382. The inillman Palace-Car Co. has been
held to the same liability as an innkeeper. Pullman Palace-Car Co. v. Lowe,.
28 Neb. 239, 44 N. W. 226. As to llaDlllties of owners and operators of ele-
vators, see Goodsell v. Taylor, 41 Minn. 207, 42 N. W. 873: Treadwell v. Whit-
tier, 80 Cal. 574, 22 Pac. 266. And see authorities coUoctod In MltcheU v.
Marker, 25 Lawy. Rep. Ann. 33, 62 F(*d. l.'{9.

*oi Common carriers may be sued either In case on the custom or in as-
sumpsit on their contract. Orange v. Brown, 9 Wend. 85. And see McCall
V. Forsyth, 4 Watts & S. (Pa.) 179; Porter v. Hlldebrand, 14 Pa. St, 12^
132; Mershon v. Hobensack, 22 N. J. Law, 373; Atchison, T. & S. F- R.

Ch. 12] ESSENTIAL ELEMENTa. 903

to carry safely.*®' Indeed, the original liability of a common car-
rier was exclusively ex delicto/®^ The first innovation, the result
of which was to allow assumpsit to be brought, is said to have been
made in 1750 in Dale v. Hall.*®* The obligations and liability of a
railroad Compaq^ are of a general and public character, and do not
depend primarily upon the contract between the parties.*®" There-
fore, recover^' may be had against a railroad company for its failure
to care properly for the safety and security of the public, where it
would not lie on the contract.*®'

Under the code pleading, formal distinctions between actions are

Co. v. Din, 48 Kan. 210, 29 Pac. 148; Baltimore City R. Co. v. Kemp, 61 Md.
619; Nevin y. Pullman, etc., Co., 106 111. 222; Central Railroad & Banking Co.
V. Pickett, 87 Ga. 734, 13 S. E. 750. Cf. Chattanooga, R. & C. R. Co. v.
Palmer, 89 Ga. 161, 15 S. E. 34. Tlie court determines whether the contract
of the carrier is on the custom or is a special contract. Kimball v. Rutland
& B. R. Co., 26 Vt 247. And sec as to eflPect of deviation from prescribed
mode of shipment, Pavitt v. Lehigh Val. R. R., 153 Pa. St. 302, 25 Ati. 1107.
The Queen of Pacific, 01 Fed. 213; Bancroft-Whitney Co. v. Pacific Coast
Steamship Co., Id.

*02 Brethertou v. Wood, 3 Brod. & B. 54; Baltimore City R. Co. v. Kemp.
61 Md. 619; WTieeler v. Oceanic Steam Nav. Co., 125 N. Y. 155-102, 26 N. E.
248; Citizens' St. R. Co. of Indianapolis v. Willoeby, 134 Ind. 503, 33 N. E.
627; Central Railroad & Banking Co. v. Pickett, 87 Ga. 734, 13 S. E. 750.

403 Merritt v. Earle, 31 Barb. 38; People v. WiUett, 20 Barb. 79; Helm
V. McOaughan, 32 Miss. 17; Johnson v. Richardson, 17 111. 303; Bretherton v.
Wood, 3 Brod. & B. 54;

404 1 wils. 281.

*o5 But the ordinary action for dama;;es by a passenger is ex delicto, not
ex contractu. Therefore, if plaintiff sues one of two railroad companies for
injuries caused by derailment, and is defeated, this is no bar to a suit against
the other, Atlantic & P. R. Co. v. Laird, 7 C. C. A. 489, 58 Fed. 700. And
see Hannibal R. Co. v. Swift, 12 WaU. 262; Philadelphia & R. R. Co. v.
Derby, 14 How. 468. So action for refusal to stop at destination is usuaUy
ex delicto, not ex contractu. Fordyce v. Nix, 58 Ark. 136, 23 S. W. 907.
Thus putting a passenger off at a point not destination gives a cause of
action ex delicto, not ex contractu. New Orleans, J. & G. N. R. Co. v. Hurst.
36 Miss. 660. An action against a railway company for refusing to deliver
goods to an unpai vendor, who has stopped them in transit, is an action
ex delicto. Pontifex v. Midland R. Co., 3 Q. B. Div. 23, 47 Law J. Q. B. 28.

*o« Sawyer v. Rutiand & B. R. Co., 27 Vt 370.

904 NEGLIGENCE. [Ch. 12

abolished. Regard is had to the facts constituting the cause of
complaint, and the plaintiff is entitled to the most ample redress
and relief which the facts will justify; and, unless a special con-
tract ver\- clearly appears to be made the gravamen, an objection
to the complaint in an action against a common carrier, as for ex-
ample in carrying a passenger bej^ond his destination, is founded
in tort.**^^ Wh(»re there is a special contract, varying the liability
of the carrier within limits allowed by law, the action is properly
brought on the special contract, but not counting in tort upon the
public duty of the carrier/^® Where a common carrier limits his
liability, not caused by negligence, through a contract stipulation,
the owner of goods destroyed by fire must sue in contract, and not
on the common-law liability, ex delicto.*^®

260. A contract ordinarily creates no duty, except to par-
ties and privies. Therefore, the normal rule is that
no action ex delicto may be maintained by stran-
gers to it for its negligent breach.

Thus, in actions against members of the bar for negligence,
it is well settled that only the person with whom the attorney con-
tracts can maintain the action, for it is to him alone that the at-

«07 Heirn v. McCaughan, 32 Miss. 17; New Orleans, J. & G. N. R. v. Hurst,
36 Miss. 660.

408 2 Am. & Eng. Enc. Law, 903; Bliss, Code PI. § 14; 1 Bate, PI. 372;
Oxley V. Railway Co., 65 Mo. 629; Boaz v. Central R. Co., 87 (ia. 463, 13 S.
E. 711; Indianapolis, D. & W. Ry. Co. v. Foray the, 4 Ind. App. 326, 29 N.
K. 113S: Louisville & N. R. Co. v, Touart, 97 Ala. 514, 11 South. 756; John-
stone V. Richmond & D. R. Co., 39 S. C. 55, 17 S. E. 512.

4 09 Indianapolis & D. W. Ry. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138.
But where the carrier does not stipulate In a special contract against liability
for his own negligence (even if it could do so effectively), the existence of such
RIHJcial contract for the shipment of live stock, with certain stipulations there-
in exempting the carrier from liability, is no obstacle to the maintenance of
an action of tort based on its legal duty, and a breach thereof by negligence.
Tlie special contract will be a defense only in connection with evidence show-
ing that the loss or injurv complained of was not caused by the negligence
alleged. NlcoU v. East Tennessee, V. & G. R. Co., 89 Oa. 260, 15 S. E. 309.
And see White v. Great Western R. Co., 2 C. B. (N. S.) 7.

Ch. 12] ESSENTIAL ELEMENTS. ^05

torney owes a particular duty.*^* On the same principle, it has
been held that, where a servant, having a ticket, is injured while
riding on a railway train, he can sue in contract or tort, but the
master cannot maintain his action against the company for the
loss of the service of his servant, because it was caused by a breach
of contract to which he was not a party.*^^ So, in Winterbottom
V. Wright,*^* the defendant hired a mail coach fi'om the postmaster
general, and contracted to keep it in repair. A third person also
contracted to furnish horses for the coach, and the plaintiff hired
to drive it for such third person. The coach broke down, and the
plaintiff was injured; and he was not allowed to recover, because,
"if we were to hold that the jUaintiff could sue in such a case,
there is no point at which such action would stop. The only safe
rule is to confine the right to recover to those who enter into the
contract. If we go one step beyond that, there is no reason why
we should not go fifty.'" A further reason assigned is that "the
object of the parties in inseiting in their contract specific under-
takings with i*esi)ect to the work to be done is to create obliga-
tions and duties inter ses<\ These engagements and undertakings
must necessarily be subject to modifications and waiver by the
contracting parties. If third persons can acquire a right in the
contract, in the nature of a duty to have it performed as contracted

410 Dundee Mortgage & Trust In v. Co. v. Hughes, 20 Fed. 39; Savings
Bank v. Ward, 100 U. S. 19.j; Fish v. KeUy, 17 C. B. (N. S.) 1^. So a notary
is liable only to party to original deed as to whom he had made a false cer-
tificate. Ware v. Brown, 2 Bond, 267, P'ed. Cas. No. 17,170. A register of
deeds is Uable in damages for a false certificate of title only to the party
employing him to make a search, and not to his assignee or alienee. House-
man V. GU-ard Mut. Bldg. & Loan Ass*n, 81 Pa. St. 256. Where, \md&
coverture, the wife could not contract, and her alleged servant was guilty
of negUgence, the action is against the huiiiband, and not against the wife.
Ferguson v. Neilson, 17 R. I. 81, 20 Atl. 229.

411 Alton V. Midland R. Co., 19 C. B. (N. S.) 23. Et vide Berringer v.
Great Eastern R. Co., 4 C. P. Div. 163. Cf. Gladwell v. Steggall, 5 Bing. N.
C. 733; Clerk & L. Torts, 158.

*i2 10 Mees. &• W. 109. Et vide Parry v. Smith, 4 C. P. Div. 325. 48 Law
J. C. P. 731, 41 Law T. (X. S.) 93; Heaven v. Pender, 9 Q. B. Div. 302;
George v. Skivington, L. R. 5 Exch. 1; CoUett v. London & N. R. Co., 16 Q.
B. 984. These and other English cases wiU be found discussed in Ball,
Lead. Cas. Torts, tit "Negligence."

906 NEGLIGENCE. [Ch. 12

for, the parties will be deprived of control over their own con-
tract.'' "»

V

261. Neither the contract itself Mor its limitations exclude
liability to third persons for negligence "w^here it
"w^ould attach under the logical application of the
normal principles of negligence. Actions for dam-
ages may be maintained by persons who are neither
parties nor privies to a contract, "when the injury
complained of arises from "want of care —

(a) With respect to a dangerous thing sold;

(b) Occurring in the performance of a contract resulting

in direct and immediate damage to one's person or
property.

Damage Caused by Dangerous Things,

If a common-law duty results from the facts, the party may be
sued in tort for any negligence or misfeasance in the execution of
the contract.*^* This applies to articles which are imminently
dangerous.*" Thus, in the celebrated case of Thomas v. Winches-
ter/" a manufacturer of and dealer in vegetable extracts for medi-
cal purposes was sued by a stranger for damages suffered by him
because of the use of one of such preparations, labeled as extract of
dandelion, a harmless medicine, but which wasi, in fact, the ex-
tract of belladonna, a i)oison. It was held that the defendant's
negligence had put human life into imminent danger, and that his
duty arose out of the nature of the business and the danger to
others incident to his mismanagement. He was therefore held

*i8 Marvin vSafe Co. v. Ward, 40 N. J. Law, 19; White y. Norfolk & S. R.
Co., 115 N. C. 631, 20 S. E. 101. In this oaso it was held that a corporation
chartered as a common carrier, with power to use steamboats as well as
trains, Is liable as a carrier to a passenger on one of its boats, though the
boat is at the time let for an excursion, where it also lets the crew, which
is still in its pay, and subject to be discharged or changed by it And, gen-
erally, see Whltt. Smith, Xeg. pp. 10, 11. •

41* 1 Chit. n. 135.

415 2 Suth. Dam. 435.

410 In Heaven v. Pender, 11 Q. B. Div. 503, Brett, M. R., said he doubted
whether this case did not go too far.

Ch. 12] ESSENTIAL ELEMENTS. 907

liable in damages, although there was no privity between him and
the injured party. In Langridge v. Levy,*^^ A. bought a gun, which
was warranted. He gave this gun to B., who was injured by its ex-
plosion. It was held that A. alone could sue in contract, and that
B.'s cause of action was in tort.

Poisons,*^ ^ spoiled food,*^® or materials otherwise mischievous

420

417 2 Mees. & W. 519, 4 Mees. & W. 337. And see Georj?e v. Sklvin^on,
L. R. 5 Exch. 1. Cf. Dixon v. BeU, 5 Maule & S. 108; Harris v. Cameron,
81 Wis. 239, 51 N. W. 437. And see Renner v. Canfleld, 36 Minn. 90, 30
N. W. 435.

*i8 Walton V. Bootli, 34 La. Ann. 913. Sulphate of zinc sold for Epsom
salts; '*The question is whether the delivery at a drug store of a deleterious
drug to one who calls for one that is harmless, and damage resulting there-
from, of themselves, give a right of action, even though there may have been
no intentional wrong, and the Jury may believe there is no negligence. That
such an error might occur without fault on the part of the druggist or his
clerk is readily supposable. He might have bought his drugs from a reput-
able dealer, in whose warehouse they have been tampered with for the pur-
pose of mischief. It is easy to suggest accident after they come to his own
possession, or vrvong^ by others, of which he would be ignorant, and against
which a high degree of care would not give perfect protection. But how
misfortune occurs is unimportant, if, under all circumstances, the fact of
occurrence is attributable to him as a legal fault. The case is one in which
a high decree of care may justly be required. ♦ ♦ ♦ It is proper and rea-
sonable that the care required shall be proportionate to the danger involved.
But we do not find that the authorities have gone so far as to dispense
with actual negligence as a necessary element in the liability when a mis-
take has occurred." Brown v. Marshall, 47 Mich. 576, 11 N. W. 392.
Norton v. SewaU, 106 Mass. 143; Savings Bank v. Ward, 100 U. S. 195. Where
a passenger on a steamer was Injured by a mistake of a physician in guving
a dose of calomel in response to a request for quinine, natural confusion
aboard ship was held to negative nej?ligence. Allan v. State S. S. Co., 132
N. Y. 91, 30 N. E. 482. Bt vide Qiiin v. Moore, 15 N. Y. 432; Hansford v.
Payne, 11 Bush (Ky.) 381. The use of a dye, like mordant, ordinarily harm-

*i9 Craft V. Parker, Webb & Co., 96 Mich. 245, 55 N. W. 812. As to con-
taminated water, see Buckingham v. Plymouth Water Co., 142 Pa. St. 221,
21 Atl. 824.

*2o As distinguisheil from a trespass, Gwynn v. Duffleld, 66 Iowa, 708, 24
N. W. 523; or one who took an overdose of poison, not labeled according to
statute, but with respect to which he had been actually warned, Wohlfahrt
v. Beckert, 92 N. Y. 490. Cf. Osborne v. McMasters, 40 Minn. 903, 41 N. W.
543.

908 NEGLIGENCE. [Ch. 12

or dangerous,*** which do damage to innocent third persons, attach
liability to the vendor or manufacturer only when he has been
guilty of neglij^ence.*'^ His duty is not ordinarily absolute,
but he must exercise a very high degree of care. He is not liable
for latent defects in things sold, — for example, machinery, — ^but
he is liable for obAuous defects.*^* "The rule is limited, however,
and justly so, to instrumentalities and ai'ticles in their nature cal-
culated to do injury, such as are essentially and in their elements

less, does not make the manufacturer liable to a purchaser poisoned by hand-
ling cloth, when he neither knew, nor had rejisou tc know, that the clotli so
dyed would be Injurious. Gould v. Slater Woolen Co., 147 Mass. 315, 17 N.
E. 531. Defendant sold food for animals, containing a small quantity of
lead, accidentally mixed with It during a fire, and was held liable for tha
value of the caftle poisoned. Wilson v. Dunvllle, 6 Ir. Law Rep. 210; French
V, Vining, 102 Mass. 132. And, generally, see George v. Skivington, L. R.
3 Exch. 1; BniflC v. Mall, 36 N. Y. 400; Bishop v. Weber, 139 Mass. 411, 1 N.
E. 154; Davis v. Guarnieri, 45 Ohio. 470. 15 X. E. :r»0; Look v. Litchfield,
42 N. Y. 351.

421 As chloride of lime stored In vessel. Brass v. Maitland, 6 El. & Bl.
470, per Crompton, J. Et vide Farrant v. Barnes, 11 O. B. (N. S.) 553 (carboy
of nitric acid). Explosive oil, Quin v. Moore, 15 N. Y. 432; Elklns v. Mc-
Kean, 79 Pa. St. 493. Et vide Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219,
where defendant's liability was held to be absolute.

422 Where a vendor of a horse fraudulently conceals the fact that it is
afflicted with glanders, he is liable for the death of one employed by the
owner to take care of the horse, who contracts the disease as a natural and
probable consequence. State v. Fox (Md.) 29 Atl. 601 (reviewing? cases). Of.
Hill V. Balls, 2 Hurl. & N. 299.

424 A manufacturer Is not liable for explosion of a steam thrashing engine
because of defects not known to him. Heizer v. Klngsland & Douglass
Manuf'g O., 110 Mo. G05, 19 S. W. 630. And see Losee v. Clute, 51 N. Y.
494; Loop v. Litchfield, 42 N. Y. 351; Losee v. Buchannau, 51 N. Y. 476;
King V. New York Cent. Ry. Co., 66 N. Y. 181, 72 N. Y. 607; Davidson v.
Nichols, 11 Allen, 514; Mai'shaU v. Welwood, 38 N. J. Law, 339; HorsfaU
V. Thomas, 1 Hurl. & C. 90. The manufacturer and vendor of a steam boiler
is only liable to the purchaser for defective material, or for any want of care
and skill in its construction, and if, after delivery to and acceptance by the
purchaser, and while in use by him, an explosion occurs, in consequence of
such defective construction, to the Injury of a third person, the latter has
no cause of action, because of such Injury, against the manufacturer. Losee
V. Clute, 51 N. Y. 494; Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381.

Ch. 12] ESSENTIAL ELEMENTS. 909

instruments of danger, and to acts that are ordinarily dangerous
to life and property." *'** By way of contrast, a car with defective
brakes is not such an imminently dangerous instrument as to ren-
der the company liable to any one injured thereby, in the absence
of any contractual or other relation.*^' It was held, in Richmond
& D. R. Co. V. Elliott,**' that if a railroad company, in imrchasing
a locomotive **from a manufacturer of recognized standing, ♦ ♦ ♦
made such reasonable examination as was possible without tear-
ing the machinery to pieces, and subjected it fully to all the ordi-
nary tests which are applied for determining the efficiency and
strength of completed engines, and such examinaticm and tests
had disclosed no defect, it cannot, in an action by one who is a
stranger to the company, be adjudged guilty of negligence."

Dnvuigt in Course of Negligent Performance of Contract.

Where, under a contract to which the plaintiff is not a party,
damage is done immediately to his person or propertj' by the negli-
gence or otherwise wrongful performance of such contract, he may
recover. Thus, an attorney, while not liable on his opinion to per-
sons not parties to a contract, is liable for any wrong he may do
to a party in course of the performance of such contract, as for
negligence or wrong in seizing goods.**' So a physician rendering
service to a charity patient is liable for injury resulting from care-
lessness in treatment, although he may be paid by the county.**'*

*28 Jenkins, J., in OoocUander MiU Co. v. Staniljird Oil Co.. 11 C. C. A. 25;j.
63 Fe<l. 400-402, citing Loop v. Litchfield, 42 X. Y. 351-357. And see Bailey
V. Gas Co., 4 Ohio Clr. Ct R. 471 (natural gas engine); Davidson v. Nichols.
11 Allen, 514 (sulphide of antimony delivered instead of black oxide of man-
^nese). And see Collls v. Selden, L. R. 3 C. P. 495, approved Savings Bank
V. Ward, 100 U. S. 195; Blakemore v. Railway Co., S El. & Bl. 1035; Burdick
V. Cheadle. 26 Ohio St. 393; Curtain v. Somerset, 140 Pa. St. 70, 21 Atl. 244.

*2« Roddy V. Missouri Pac. Ry. Co., 1«)4 Mo. 2;M, 15 S. W. 1112.

♦27 140 u. s. 266, 13 Sup. Ct. 837.

*28 Weeks, Attys. p. 628. On the other hand, he may be liable to third per-,
sons for malpractice, trespass, and malicious prose vutlon. Id. 5§ i:W, 134.
Negligence is a good offset to action for services. Caverly v. McOwens. 12.'i
Mass. 574; Weeks, Attys. p. 607. Action on the cas<- Is the usual procedui-e.
Russel V. Palmer, 2 WUs. 325.

^20 The physician of an almshouse may be held liable for malpractice at
the suit of a charity patient. Dubois v. Decker, 130 N. Y. 325, 29 N. E. 313.
And see Becker v. Janlnskl (Com. PI.) 15 N. Y. Supp. 675. The child injured

^10 NEGLIGENCE. [Ch. 12

The principle is the same where the damage is to the property.
Similarly, if a contractor who agrees to move and fit up a building
in a workmanlike manner, makes a subcontract with another to
do the work, the latter is liable to the owner of the building for
negligence and misfeasance in performing the same, although there
is no privity of contract between them.*'® One person may sus-
tain different relations to another, as well as different relations to
different persons.*'^

Eff^ect of Limitations as to Third Persons,

It has been seen that many limitations on liability which may be
regarded and remedied as tortious may be altered by agreement.*'^
Such limitations, however, affect only the parties to the contract^
and not third persons who may be entitled to recovery for a wrong
a part of which is a breach of contractual duty. Thus, limita-
tions in the telegraph contract limiting responsibility to messages
repeated, applies to the sender, and not to the recipient. Accord-
ingly, where the latter receives a telegram sent from Staten Island,
but reading as if sent from South Carolina, whereby he was misled
into taking a fruitless trip to South Carolina, he can recover damages
from the telegraph company, notwithstanding the absence of privity
between him and it.***

262. Negligence in the performance of a contract includes
-want of competent skill. Diligence includes coxa-
potency.

In general, when a person offers his services to the public in any
business, trade, or profession, there is an implied engagement with
those who employ him that he possesses that reasonable degree of
learning, skill, and experience which is ordinarily possessed by per-

bj' a surgeon's malpractice may recover, although the contract was made with
the parent Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Sheppard, 11
Price, 400; Balrd v. Gillett, 1 Alb. Law J. 238 (reversed ou another point, 47

N. Y. 18G).

430 Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014; Toomey v. Dono-
van, 158 Mass. 232, 33 N. E. 396.

431 Toomey v. Donovan, 158 Mass. 232-237, 33 N. E. 306.

482 Ante, p. 298, ''Discharge by Contract.**

483 Tobin V. W. U. Tel. Co., 146 Pa. St. 375, 23 Aa 32*; New Yorlj P. &
Tel. Co. V. Dryburg. 35 Pa. St 208.

Ch. 12] ESSENTIAL ELEMENTS. 911

sons in the same business, trade, and profession, and which is or-
dinarily regarded by the community and by tliose conversant with
that employment as necessary and sufficient to qualify him to engage
in such business, trade, or profession, and that he will perform mat-
ters intrusted to him diligently and faithfully.*'* As no prudent
person would, unless possessed of competent skill, undertake the
doing of any act which in the absence of skill would cause great
risk of injury to another, the doing of such acts by an unskilled
person will amount to negligence.* ^'^ Undertaking to exercise judg-
ment without skill in a matter which requires skill is not a mere
error of judgment, but it is negligence.*'* Therefore negligence in-
cludes the want of competent skill, as where an incompetent person
produces injury in the management of horses,*'^ or of a railway
train.*'* Where, however, an emergency elicits a volunteer to act
without pretending to possess special qualifications, the law recog-
nizes the necessity as forming an exception to the general rule re-
quiring skill.*'* This has been regarded, not as an exception as
to the standard of conduct of a prudent man.**** On the other
hand, Mr. Bigelow argues that the test of the prudent man's conduct
does not hold good where the defendant has stepped out of his own
business.**^

Medical Men.

The implied contract of a physician or surgeon (a "medical man,"
as he is called in England) *** is not to cure, but to possess and em-
ploy in the treatment of a case such reasonable skill and diligence

*«* Shepley, J., in Odlin v. Stetson, 17 Me. 244; Cayford v. WUbur, 86 Me.
414, 29 AtL 1117; Bell, J., In Lelghtan v. Sargeant, 7 Fost (N. H.) 460; Cooley,
Torts, 647; Smith v. Holmes, 54 Mich. 104, 19 N. W. 767. And see Chase v.
Heaney, 70 111. 268; Clark v. Marshall, 34 y\o, 429; Savings Bank v. Ward,
100 U. S. 195.

48 B Clerk & L. Torts, 356.

4 36 City of Terre Haute v. Hiidnut, 112 Ind. 542. 13 N. E. 68a

437 Hammack v. White, 11 C. B. (X. S.) 588.

488 Hutchinson v. York, X. & B. R. Co., 5 Exch. 343.

489 Higgins V. McCabe, 126 ^lass. 13; Beardslee v. Richardson, 11 Wend.
(N. Y.) 25; Gladwell v. SteggaU, 5 Ring. X. C. 733.

440 Pol. Torts, p. 359; BaU, Lead. Ca.s. 225, 226.

441 Bigelow, Lead. Cas. 590. Et vide Pig. Torts, 218, 219.

442 Hastings, Torts, 189.

912 KEGLIGENOR. [Oil. 12

as are oidiuarily exercised in his profession by thoroughly educated
physicians; and in judging of the degree of skill required, regard
is had to the advanced stage of the profession at the time. Tlie
law does not require the highest degree of skill and science.**' The
standard must be a practical and attainable one. The standard of
ordinary skill may vary, even in the same state, according to greater
or less opportunity afforded by the locality for the observation and
practice from which alone the highest skill can be acquired.*** A
phj'sician does not insure that his treatment will be successful; and
a failure to effect a cure does not raise a presumption of want of
skill or failure to exercise diligence.**'^

The courts will take no notice of different "schools" in medicine.
They recognize all systems as legitimate and require the physician
to practice according to his professed and avowed system.*** The
right of the state to prescribe the rule and test for the ascertain-
ment of the qualifications for the applicants for authority to prac-
tice medicine as a livelihood is a part of the police power which has

4*3 Saybord v. Wilbur, 86 Me. 414. 29 Atl. 1117; McCandless v. McWha,
22 Pa. St 2G1, approved Smothers v. Hanks, 34 Iowa, 286; Leightou v. Sar-
geant, 7 Fost. (N. H.) 460, cases coUected; Peck v. Hutchinson, 88 Iowa, 320,
55 N. W. 511; Hewitt v. Elsenbart. 36 Neb. 7D4, 55 N. W. 252; Lawson v.
Conaway, 37 W. Va. 159, 16 S. E. 504; 1 Hil. Torts (2d Ed.) 253; Teflft v.
Wilcox, 6 Kan. 46; McNevins v. Lowe, 40 IH. 209; Wood v. Clapp, 4 Sneed
(Tenn.) 65; Lamphler v. Phipos, 8 Car. & P. 475. Ct Sea re v. Prentice, 8
East, 348. Defendant cannot show that he was generally reputed to possess
a high degree of skiU in his profession, where plaintiff did not allege or offer
to prove that he lacke<l ordinary skill. Carpenter v. Blake, 60 Barb. 490,
50 N. Y. 690, explained. Degnan v. Ransom, 83 Hun, 267, 31 N. Y. Supp. 960.

*** Smothers v. Hanks, 34 Iowa, 286; Shear. & R. Neg. p. 491, § 436; Hew-
itt V. Else-nlMirt, 36 Xeb. 794, 55 N. W. 252; Peck v. Hutchinson, 88 Iowa,
320, 55 N. W. 511.

**5 Lawson v. Conaway, 37 W. Va. 159, 10 S. E. 5G4. A short note as to
the skill and care required of a physician, 38 Am. St. Rep. 30.

'•^^ A homeopath's care is to be measured by homeopath's peculiar standard.
Force V. Gregory, 63 Conn. 107, 27 Atl. 1116. And see Burnham v. Jackson,
1 Colo. App. 237, 28 Pac. 250. Accordingly, evidence to prove that defend-
ant's treatment of a case was according to the botanic system of practicing
medicine, w^hich he professed and was known to follow, is admissible. Bow-
man V. Woo<ls, 1 G. Greene (Iowa) 441; Com. v. Thompson, 6 Mass. 134;
Patten v. Wiggien, 51 Me. 594. Et vide Dr. Groenvelt's Case, Esp. 601.
There is, however, a civilized tendency to test malpractice according to well-

Ch. 12] ESSENTIAL ELEMENTS. 913

been constantly exercised by the lej^islatures. Such statutes do not
alter the law of ne«:ligence of licensees, however they may affect
the question of initial skill; and if a person act as a medical prac-
titioner, he is liable for maljiractice, thouj^h he may not have con-
formed to the statutes.**^
A phj'sician's liability does not depend upon the perscm by whom

settled riile« of medical and surreal science. Mucci v. Houghton (Iowa)
57 N. W. 305. But see Winner v. Latlirop, G7 Ilun, 511. 22 N. Y. Supp. 516.
Fractures near shoulder joint, Baird v. Morford, 2() Iowa, 531; Tefft v. Wil-
cox, 6 Kan. 46. Fractures near elbow joint, W^ilmont v. Howard, 39 Vt. 447.
Fracture near wrist joint. Smothers v. Hanlcs, ;U Iowa, 28(3; Uitchey v. West,
23 IlL 385; Scudder v. (^-ossan, 43 Ind. 343; Stevenson v. Gk^lsthorpe, 10 Mont
5C»3, 27 Pac. 404. Fracture near ankle joint. Almond v. NujrcMit, 34 Iowa, 300.
Generally, as to fractures, Young v. Mason^ 8 Ind. App. 204, 35 N. E. 521; Ged-
ney v. Klngsley, 62 Hun, G20, 16 N. Y. Supp. 792. Dislocation, Carpenter v.
Blake, 60 Barb. (N. Y.) 488. "CoUes' fracture,'' Link v. Slieldon, 136 X. Y. 1,
32 N. E. iyM, Amputation, Alder v. Buckley, 1 Swan (Tenn.) 61); Howard
y. Grover, 28 Me. 97. One of the most celebrated of malpractice cases, in
which alleged malpractice consisted in opening an abscess, is Walsh v. Say re,'
52 How. Prac. SSTy. Et vide Kay v. Thompson, 10 Am. I^w Reg. (N. S.)
594. Failure to discover serious i-upture of perineum is negligence. Lewis
V. Dwinell, 84 Me. 497, 24 Atl. 945. Cf. I^ngfoi-d v. Jones, 18 Or. 307, 22
Pac. 1064; Beck v. German Klinik, 78 Iowa, 696, 43 N. W. 617. In obstetric
cases, Grainnis v. Branden, 5 Day (Conn.) 260. In venesection. Hancke v.
Hooper, 7 (^ar. & P. 81. Treatment of frost bite, Kay v. Thompson, 10 Am.
Law Reg. (N. S.) 594; Pnttcn v. Wisgin, 51 Me. 594. Liability of hospital
physician for nurse, Perlonowsky v. Freeman. 4 Fost. & F. 077. Vaccina-
tion, Landon v. Humphrey, 9 Conn. 209. A felon. Twombly v. Leach, 11
Cush. 397. Erysipelas, Cochran v. MUler, 13 Iowa, 128. In medical case.
Peck V. Martin, 17 Ind. 115; Rex v. Long, 4 Car. & P. 31)H-i23; Com. v.
Thompson, 6 Mass. 134.

**f Ruddock V. Lowe, 4 Fost. & F. 519, note a, p. 521; Jones v. Fay, I<L
525, note a, p. 526. As to diploma as evidence of comi>etency, imder statute
and at common law, cf. ^tough v. State, 88 Ala. 234, 7 South. 150, and Town-
shend v. Gray, 62 Vt. 373, 19 Atl. 635, with Hunter v. Blount, 27 Ga. 76. Et
vide Ordronaux, Jur. Med. 2(). And generally, as to liability of physician
and surgeon, see Rowo v. Lent, 62 Hun, (521, 17 N Y. Supp. 131; Barney v-
Pinkham, 29 Neb. 350, 45 N. W. 65M; Becker v. Janlnskl (Com. PI.) 15 N.
Y. Supp. 675; Hitchcock v. Burget, 38 Mich. 501; Hesse v. Knippel, 1 Mich-
N. P. 109; Getchell v. Hill, 21 Minn. 464; (ietchell v. Lindley, 24 Minn. 2(J5:
Reynolds v. Graves, 3 Wis. 371; Gates v. Fleischer, 67 Wis. 504, 30 N. W.
674; Brlggs v. Taylor, 28 Vt. 180; Wood v. (^app, 4 Snectl (Tenn.) 65; Alder
V. Buckley, 1 Swan (Tenn.) 69; Graham v. Gantler, 21 Tex. Ill; Hathom v.

LAW OF TORTS— 68

914 NEGLIGENCE. [Ch. 12

he is paid. A city physician owes to a patient in an almshouse the
exercise of professional skill.**®

liichmond, 48 Vt 557; Potter v. Wamer, 91 Pa. St. 362; Haire v. Reese,-
7 Phila. 138; Fowler v. Sergeant, 1 Grant, Cas. 355; Small v. Howard, 128
Mass. 131; Branner v. Stormont, 9 Kan. 51; Utley v. Bums, 70 111. 162;
Fisher v. Niccolls, 2 111. App. 484; Quinn v. Donovan, 85 111. 194; Long v.
Morrison, 14 Ind. 595; Jones v. Augell, 95 Ind. 376; Tefft v. Wilcox, 6 Kan.
4(5; Peck v. Martin, 17 Ind. 115; Gramm v. Boener, 56 Ind. 497; Holtzman
V. Hoy, 19 111. App. 459; Landon v. Humphrey, 9 Conn. 209; Ritchey v.
West, 23 111. 385; IMcNevins v. Lowe, 40 111. 209; Kendall v. Brown, 74 111.
232; Barnes v. Means, 82 111. 379; Driscoll v. Cora., 93 Ky. 393, 20 S. W.
431; Hargan v. Purdy, 93 Ky. 424, 20 S. W. 432; Nelson v. State, 97 Ala.
79, 12 South. 421; Brooks v. State, 88 Ala. 122, 6 South. 902; Harrison v.
State (Ala.) 15 South. 563; State v. Hathaway, 115 Mo. 36, 21 S. W. 1081;
State V. Carey, 4 Wash. 424, 30 Pac. 729; Roberts v. Levy (CaL) 31 Pac.
570; State v. Van Doran, 109 N. C. 864, 14 S. E. 32; Moore v. Bradford,
148 Pa. St. 342, 23 Atl. 896; Craig v. Board, 12 Mont 203, 29 Pac. 532;
State V. Kellogg), 14 Mont. 451, 36 Pac. 1077; Ha worth v. Montgomery, 91
Tenn. 16, 18 S. W. 399; Glrard v. Bissell (Kan.) 25 Pac. 232; Underwood
V. Scott, 43 Kan. 714, 23 Pac. 942; Townshend v. Gray, 62 Vt. 373, 19 Atl.
f»5; Stewart v. Raab, 55 Minn. 20, 56 N. W. 256; State v. Buswell, 40 Neb.
158, 58 N. W. 728 (as to Christian Scientists); Wliitlock v. Com., 89 Va.
337, 15 S. E. 893; State v. Mosher, 78 Iowa, 321. 43 N. W. 202; State v.
.Tones, 18 Or. 256, 22 Pac. 840; State v. Hathaway, 115 Mo. 36, 21 S. W.
1081. As to English medical act, vide Leeson v. General Council, 43 Ch.
Div. 366. As to liability of irregular practitioner, vide Ruddock v. Lowe,
4 Fost. & F. 519.

4*8 Du Bois V. Decker, 130 N. Y. 325, 29 N. E. 313. The action against a
physician for negligence is not ex contractu, but ex delicto. Gladwell v. Steg-
gall, 5 Bing. N. C. 733. Bellinger v. Craigue, 31 Barb. 534, treats the ques-
tion as principally one of contract Either case or assumpsit will lie for im-
proper treatment. Kuhn v. Brownfield, 34 W. Va. 252, 12 S. E. 519. Whether
required by statute, or assuming the duty, the master who employs a physi-
cian to attend his emi)loyC's, the carrier who employs one to attend its pas-
sengera, or the hospital or other institution that employs one to attend its
Inmates, is only bound to procure one who is competent, and when that duty
has been performed, he is free from all liability for the physician's negli-
gence. 2 Am. Law Reg. & Rev. 103; Union Pac. Ry. Co. v. Artist, 9 C. C.
A. 14, 60 Fed. 305; South Florida R. Co. v. Price, 32 Fla. 46, 13 South. 638;
O'Brien v. Cuuard S. S. Ck>., 154 Mass. 272, 28 N. E. 266; McDonald v. Massa-
chusetts Gen. Hospital, 120 Mass. 432; Laubhelm v. De Koninglyke N. S.
Co.. 107 N. Y. 228, 13 X. E. 781; Allan v. State S. S. Co., 132 N. Y. 91, 30
N. E. 482 (reversing [Sup.] 8 N. Y. Supp. 8a3). And see Eighmy v. Union
Pac. Ry. Co. (Iowa) 61 N. W. 1056; Campbell v. Northern I*ac. R. Co., 51

Ch. 12] ESSENTIAL ELEMENTS. 915

Lavoyers,

As to attorneys, Tindal, C. J., has said:*** "It would be ex-
tremely difficult to define the exact limit by which the skill and
diligence which an attorney undertakes to furnish in the conduct
of a cause is bounded, or to trace precisely the dividing line between
that reasonable skill and diligence which appears to satisfy his un-
dertaking and that crasse negligentia or lata culpa mentioned in
some of the cases, for which he is undoubtedly responsible^ The
cases, however, ♦ ♦ ♦ appear to establish, in general, that he is
liable for the consequences of ignorance or nonobservance of th^ rules
of practice of this court; ^^^ for the want of care in the preparation of
the cause for trial,* '^ or of attendance thereon with his witnesses;
and for the mismanagement of so much of the conduct of a cause as is
usually and ordinarily allotted to his department of the profession.
Whilst, on the other hand, he is not answerable for error in judgment
upon points of new occurrence or of nice or doubtful construction."
"God forbid that it should be imagined that an attorney, or even a
judge, is bound to know all the law." *** The liability of an English

Minn. 488, 53 N. W. 768; Clark v. Missouri Pac. R. Co. (Wash.) 29 Pac. 1138.
And see Richardson v. Carbon Hili Coal Co. (Wash.) 39 Pac 95. But if the
physician is incompetent, or unfit to perform his duties, the employer is lia-
ble; though, if he has used ordinary care, he is not responsible, even when the
hospital is supported by the forced contributions of the employes. 2 Am. Law
Reg. & Rev. 163, citing Richardson v. Carbon HiU Coal Co. (Wash.) 39 Pac. 95.

♦♦» Godefroy v. Dalton, 6 Bing. 4(57-169. Further as to difference l>e-
tween English members of the bar, see Ireson v. Pearman, 3 Bam. & C. 799.
An action for professional negligence will not lie against the barrister.
Swinfen v. Chelmsford, 5 Hurl. & N. 918, 29 Law J. Exch. 382.

*»o Caldwell v. Hunter, 10 Q. B. 83; Bracey v. Carter, 12 Adol. & B. 373.
Negligently suffering Judgment by default. Godefroy v. Jay, 7 Bing. 413;
Hoby V. Built, 3 Bam. & Adol. 350.

«5i Or bringing an action in a court without Jurisdiction. Williams v.
Gibbs, 6 Nev. & M. 788; Cox v. Leech, 1 C. B. (N. S.) 617, 26 Law J. C. P.
125. Compare Meredith v. Wootlward, 16 Wkly. Notes Cas. 146.

4 «2 Abbott, C. J., in Montriou v. Jeffreys, 2 Car. & P. 133. Lord Mans-
field's saying in Pitt v. Yalden, 4 Burrows, 2060, 2061, is famous: "That
part of the profession which is carried on by attorneys is liberal and rep-
utable, as well as useful to the public, when they conduct themselves with
honor and integrity; and they ought to be protected when they act to the
best of their skill and knowledge. But every man is liable to error, and I
should be very sorry that it should be taken for granted that an attorney is

916 NEGLIGENCE. [Ch. 12

attorney or solicitor *"' is essentially that of a member of the bar in
Ameiica, viz. he is requii-ed to exercise such diligence as a good
lawyer is accustomed to apply under similar circumstances.*^* He
cannot be held liable for a mistake in reference to a matter as to
which members of the profession i)ossessed of reasonable skill and
knowledge may differ as to the law, until it has been settled in the
courts; nor if he is mistaken in a point of law on which reasonable
doubt may be entertained by well-informed lawyers.*^*

The standard of skill required of lawyers is substantially the same
as that of physicians.* •*• It is deteiinined by the particular practice
of the particular bar. "A metropolitan standard is not to be ap-

answerable for everj' error or mistake. ♦ ♦ ♦ A counsel may mistake, as
well as au attorney. Yet no one will say that a counsel who has been mis-
taken shall be charged. ♦ ♦ ♦ Not only a counsel, but Judges, may differ
or doubt, or take time to consider. Thei'efore, an attorney ought not to be
liable in case of a reasonable doubt.'* The saying of Lord Cottenham in
Ilart V. Frame, G Clark & F. 193, is also much quote<l. Et vide Laidler v.
Elliott, 3 Bam. & C. 738; Russell v. Palmer, 2 Wils. 325.

*58 Hart V. Frame, (5 Clark & F. 103; CaldweU v. Hunter, 10 Q. B. 83; Par-
ker V. IColls, 14 C. B. 691; Purves v. I-andeU, 12 Clark & F. 91.

*^* Whart. Neg. § 749; Sprague v. Baker, 17 Mass. 580; Kepler v. Jessupp
(Ind. App.) 37 N. E. 055; Isham. v. Parker, 3 Wasli. St. 755, 29 Pac. 835;
White V. Washingiton, 1 Barnes, Notes Cas. 411; Holmes v. Peck, 1 R. I. 242;
Stevens v. Walker, 55 111. 151; Wilson v. Russ, 20 Me. 421; Stubbs v. Beene,
37 Ala. 627; Gambert v. Hart, 44 Cal. 542. Reasonable care and diligence.
Kepler v. Jessupp (Ind. App.) 37 N. E. 655. A contract for the services of
members of a legal profession is not a hiring of labor, but a mandate. Gur-
ley V. City of New Orleans, 41 La. Ann. 75, 5 South. 659. Generally, as to
liability of attorneys for erroneous advice, see 4 Yale L. J. 65, by William
B. Bosley.

4 55 Citizens' Loan Fund & Sav. Ass'u v. Friedloy, 12.S Ind. 143, 23 N. E.
1075. Compare Codirane v. Little, 71 Md. 323, IS Atl. 698. An attorney can-
not be charged with negligence when he accepts, as a correct exposition of the
law, a decision of the supreme court of his state in another c^ase upon the
question of the liability of stockliohlers of corporations of the state, in ad-
vance of any decision thereon in his own case. Marsh v. Whitmore, 21 Wall.
178. Nor is he liable for au insufficient affidavit In attachment. Ahlhauser
V. Butler, 57 Fed. 121.

4 50 Watson V. Muirhead, 57 Pa. St. 101. "The law is not a mere art, but^
a science." Share wood, J. Citizens' Lean Fund & Sav. Ass*n v. Friedley.
123 Ind. 145, 23 N. E. 1075, reviewing many cases. Approved 126 Ind. 490.

Ch. 12] ESSENTIAL ELEMENTS. 1)17

plied to a rural bar." ^^"^ A lawyer is not expected to guaranty suc-
ce8S.^°® This standard would not seem consistent with the early
theory that an attorney-at-law is not liable if he acts honestly and
to the best of his ability.*^® Of course, he must exercise reasonable
dilij»ence generally in the conduct of his client's business.^**^ Thus,
in examination of titles he must scrutinize vigilantly, and is lia-
ble, for example, for failure to note the existence of an incum-
brancel*^^ But as to doubtful points of law it is sufficient if he con-
forms to the standard of good professional men of the place.*®^

*B7 Weeks, Attys. § 289; Pennington v. Yell, 11 Ark. 212; Whart. Neg. $
750.

458 Weeks, Attys., § 290.

460 Lynch v. Com., 16 Serg. & R. 368; Crosby v. Murphy, 8 Ir. C. L. 301;
Kemp V. Burt, 4 Burn. & Adol. 424; cnbert v. WiUfams, 8 Mass. 57; post,
note 153. He has, however, been held liable for gross negligence. Purves
V. I-andell, 12 Clark & F. 91; Baikio v. Chandless, 3 Camp. 17; P:ikhigton
V. Holland, 9 Mees. & W. GGl.

*«o In not commencing an action against a debtor in failing circumstan-
i-es, Uhines v. Evans, OC Pa. St. 192; in time to avoid bar by the statute of
limitations, Fox v. Jones (Tex. Sup.) 14 S. W. 1007; Hett v. Pun Pong, 18
Can. Sup. Ct. 290; to be present when his case is reached, City of Lincoln
V. Staley, 32 Neb. 6I5, 48 X. W. 887; to advise client as to expenses on appeal,
.Jamison v. Weaver, 81 Iowa. 212, 4(> N. W. 990; not to make negligent in-
vestments, Blyth V. Fladgate [1M91] 1 Ch. 337 (et vide Mellish, L. J., in Saw-
yer V. Goodwin, 1 Ch. Div. 351); hKUiing money. Whitney v. Martlne, 88 N.
Y. 535; for not notifying his client of impending tax sales. Wain v. Beaver,
161 Pa. St. 605, 29 Atl. 114; for negligence In preparing mechanic's lieu, Joy
V. Morgan, 35 Minn. 184, 28 N. W. 237; generally, for misdescription, Taylor
v. Gorman, 4 Ir. Eq. 550; for loss of bt)nd, Walpole v. Carlisle, 32 Ind. 415.
Not liable for failure to transfer insurance policy to vendee, Herbert v.
Lukens, 153 Pa. St. 180, 2.1 Atl. 1110. When not liable for failure toplead
statutorj' limitaticms, Thompson v. Dickinson, 159 Mass. 210, 34 N. E. 2(52.

*«i Pennoyer v. Willis (Or.) 32 Pac. 57. But, even under such circumstan-
ces, the question of negligence has been left to the juiy. Pinkston v. Ar-
rlngton, 98 Ala. 48$). And see Hinckley v. Knig (Cal.) 34 Pac. 118.

462 W'atson V. Muirhead, 57 Pa. St. 161; Whart. Ag. § 597; Potts v. But-
ton, 8 Beav. 493; Taylor v. Gorman, 4 Ir. Eq. 550; Wilson v. Tucker, 3
Starkie, 154, Dowl. & U. N. P. 30; Knights v. Quarles, 4 Moore. 5.32; Allen
V. Clark, 7 Law T. R. (X. S.) 7.S1. 1 N. U. 3.")S; Drax v. Scrooi^e, 2 Barn. &
%Adol. .'>81; Stannard v. L'llithonie, 10 Bing. 491; Ireson v. Pearman, 5 Term
R. (;87; Howell v. Young, 5 Barn. & C. 259; Whitehead v. Greetham, 2
Bing. 464, 10 Moore, 1S.3; Dartnall v. Howard, (J Term R. 438, 4 Barn. & C.
345; Brumbridge v. Massey, 28 I^aw J. Exch. 59; (hooper v. Stephenson. 21

918 NEGLIGENCE. [Ch. 12

Special Cases of Cmiiract Duty.

The violations of duty which arise from contract or from a state
of facts of which a contract forms a necessary part, giving rise to an
action based on negligence, are almost infinite in variety and oc-
currence. They are illustrated in all main features in two impor-
tant classes of cases, viz. master and servant, and common carriers.
These subjects will be considered at length in subsequent chapters
for sake of convenience of arrangement.

263. In order that a complainant may recover for negli-
gence in the performance of statutory duty, he must
show —

(a) That he is within the class for whose benefit legisla-

tion creating not a purely public duty wbs designed;

(b) That there was a negligent violation of statutory re-

quirement by the defendant;

(c) That he suffered damage as the proximate result of

such violation.

It has already been shown that an action may lie on behalf of a
person injured by a breach of a statutory duty. As the principle
is sometimes stated, all that is necessary to entitle one to recover un-
der such circumstances is to show the statutory requirement, its
nonperformance, and special injury to himself.*** But, as has been
seen, this general principle has been modified in at least three re-
spects.* So far as liability for negligence is concerned, the principal
propositions would seem to be as stated in the black-letter text.

Purely Public Duty.

If the duty is wholly public, and not at all for the benefit of pri-
vate individuals, no private person can recover for its Aiolation.

Law J. Q. B. 292; Hayne v. Rhodes, 8 Q. B. 342, 10 Jur. 71, 15 Law J. Q. B.

137.

483 Chamberlaine v. Chester & B. R. Co., 1 Exch. 870; Couch v. Steel, 3 El.
& Bl. 402 (In this Doted case a seaman recovered from a shipowner for dam-
ages suffered because of breach of statutory duty to keep medicine aboard a
ship).

♦ Ante, p. 1)8.

Ch. 12] ESSENTIAL ELEMENTS. 919

Thus, in the celebrated Atkinson Case,*®* a water company, required
by statute to keep the pressure in their pipes so as to reach the high-
est story in the highest house in the area supplied, was not held lia-
ble to one who suffered special damage by fire to his house because
of insufficient pressure. The act was held to be in the nature of a
private legislative bargain, and not to create a duty to such person.
Even if a public duty be created and special damage ensue, the right
of an individual action does not necessarily follow. While it is
generally conceded that, in the absence of statutory obligation,*®'
no liability rests on the owner of a lot abutting a street to repair or
maintain in safe condition the street or sidewalk, it is insisted by
many authorities that failure, for example, to remove snow, as re-
quired by an ordinance, is a breach of duty to the public from which
an individual action does not arise.*®* The general opinion, how-
ever, on this point would sustain an action by private individuals
against the municipality for negligence in the breach of a charter
requiring the municipality to keep itB streets and sidewalks in a
good and safe condition.*®^

<«* Atkinson v Xewcastlo & G. Water Works, L. R. 6 Exch. 404, 2 Excb. Div.
441. Et vide Stevens v. Jeacocke, 11 Q. B. 731; Davis v. Clinton Water
Works Co., 37 Am. Rep. 185. A coilection of recent decisions on their lia-
bility for loss by fire due to lack of adequate water supply will be foun-d in
23 L. R. A. 146. A municipal corporation maintaining waterworks, however,
may be liable to a private individual under such circumstances. Springfield
Fire & Marine Ins. Co. v. Village of Keeseville, 80 Hun, 162, 29 N. Y. Supp.
1130. The liability of a water company often depends on construction of
contract. Mott v. Cherryvale Water & Manuf g Co., 48 Kan. 12, 28 P. 989.

4«a DUl. Mun. Corp. (4th Ed.) § 976.

466 Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74, 7 N. W. 728: And see
cases collected in Hayes v. Michigan Cent. R. Co., Ill U. S. 228-240, 4 Sup.
Ct 369. Flynn v. Canton Co., 40 Md. 312-^323; Kirby v. Boylston Market
Ass'n, 14 Gray, 249; Moore v. Gadsden, 93 N. Y. 12; Hartford v. Talcott, 48
Conn. 525; Smith v. Donohue, 49 N. J. I^w, 548, 10 Atl. 150; Hi^euey v.
Sprague, 11 R. I. 45G. The rule was once laid down in Pennsylvania that
"a municipal ordinance creates no new liability in favor of one injured by the
negligence of another." Philadelphia & R. R. Co. v. Ervin, 89 Pa. St. 71; Phila-
delphia & R. Ry. Co. V. Boyer, 2 Am. & Eng. R. Cas. 172. Et vide Vandyke
V. Cincinnati, 1 Disn. (Ohio) 532; Central Ohio R. Co. v. Lawrence, 13 Ohio
St. 66; Meek v. Pennsj'lvania Ry. Co., 38 Ohio St 632.

4 67 City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937. In this
case Chief Justice Ruger in an elaborate opinion lays down seven proposi-

t^20 NEGLIGENCK. [Ch. 12

Private Duty,

The statute or ordinance may create, not only a public duty, but a
duty to private persons, a breach of which may be actionable negli-
gence; and yet an individual may not be able to recover, because he
is not of the class of persons for whose benefit the statute was de-
signed. Thus, it has been held that an ordinance requiring a rail-
road company to keep flagmen at street crossings was not intended
for the protection of the company's employ(^s, and creates as to them
no duty, the violation of which, resulting in damage, is actionable
negligence.**® So an ordinance requiring precautions to be taken*

tious as to llablUty of corporations for streets and sidewalks, which em-
body the siibstauco of the law on this point. Many oases usually cited as
sustaining the former doctrine may be brought within the construction of
language and purview of statute so as to deny creation of private duty or
remedy wltliin the principle that a breach of mere ordiniance is not nec-f^s-
sarily conclusive evidence of negligence, but is to be considered as evidence
of want of due care, in connection with the other facts in the case. The
other would seem to be at variance with prevalent ideas as to the responsi-
bility of mimicipal corporations. McNerney v. Kejiding City, 150 Pa. St 611,
•jr. Atl. 57; McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153; Knupfle v.
Ivuii'kcrbockor Ice Co., 84 N. Y. 488; Cook v. Johnston, 58 Mich. 437, 25 N.
W. ;JS8; Siemors v. Eisen, 54 Cal. 418; Rainey v. New York Cent & H. R.
R. Co., 68 Hun, 405, 23 N. Y. Supp. 80. The general cuiTent of opinion sus-
tains the rule as already stated. Pennsylvania Co. v. Ilensil, 70 Ind. 5C0;
Bott V. Pratt, 33 Me. 323; Mason v. Shawnec^town, 77 lU. 533; Flynn v. Can-
ton Co., 40 Md. 312; Jackson v. Shaw, 21) Cal. 267; Lane v. Athintic Works,
111 Mass. 13(>; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Hayes v. Michi-
gan Cent. R. Co., Ill U. S. 228, 4 Sup. Ct 309.

46 8 Kansas City, Ft. S. & M. R. Co. v. Kirksey, 9 C. C. A. 321. 60 Fed. 999.
In absence of statute imi)osing such duty, it has been held that negligence
vaunot be predicated by railroad company for failure to station a flagman
or maintain gates and lights at highway crossings. Case v. New York Cent
& H. R. R. Co., 75 Hun, 527, 27 N. Y. Supp. 41M]. Perhaps a true view is
that the juiy is to determine tlu* (luestion of negligence as to this point under
all the circumstances of the case. Omaha & R. V. Ry. Co. v. Brady, 39 Neb.
27, 57 N. W. 767. Cf. Artz v. Railroad Co., 34 Iowa, 153. Where the statute
creatt^s a liability for injury to stock running at large caused by failure tx)
fence, an action will not lie for p<'rsonal injur>' received by the driver of
horses and wagon. Cohoon v. Chicago, B. & Q. R. Co. (Iowa) 57 N. W. 727.
Kt vide Case v. New York Cent. & II. R. R. Co., 75 Hun. 527, 27 N. Y. Supp.
496. As to blowing whistle, Toudy v. Norfolk, etc.. Ry. Co., 38 W. Va. 694. A
railroad company will be liable to its enghieer for injury caused by collision ot

Ch. 12] ESSENTIAL ELEMENTS. 921

to secure the safety of buildings ap])liea only to citizt'ns in them on
business, and not to a fireman going there to extinguish a fire/®*
And a statute requiring railway companies to block "frogs'* in their
yards and terminal stations does not render them liable to a tres-
passer for injuries resulting from a failure to comply* therewith.*'**
When the statute or ordinance is manifestly for the benefit of a
particular class, persons within that class can recover.*^ ^ Thus,
where a statute requires the owner of tenement houses to provide
them with fire escapes, and he fails to comply therewith, he is lia-
ble for damages caused his tenant by breach of this duty.*^^

engine with a buU whicli has come on the trade through defect in the fence.
Dickson v. Omaha & St. L. Ry. Co.. 124 Mo. 140, 27 S. W. 47G. To the same
effect, Atchison, T. & S. F. H. Co. v. Keesman, 9 C. C. A. 20, (K) Fed. 370.
Of. French v. Western N. Y. & P. R. Co., 72 Hun, 4(59, 25 N. Y. Supp.
229; Dean v. Railroad Co., 54 Mo. App. (U7; Miilhouse v. Railway Co., 7
Ohio Ch-. Ct. R. 4GG. See Morse v. Boston & L. R. Co. (N. H.) 28 Atl. 2.sr,.
A statute requiring certain notice as to bla.sting, so that all persons or teams
appmaching may have time to retire safely, does not create a duty towards
workmen in a quarry. "Ai)proaching" is a word of limitation. Hare v. Mc-
Intire, 82 Me. 240. Kt vide Harty v. Central R. Co.. 42 N. Y. 408. And.
generally, as to what is within the scoik* of statutory duty, see Feuui'U v.
Seguin St. Ry. Co., 70 Tex. G70. S S. W. 48G; I'nion Pac. Ry. Co. v. McDtJu-
ald, 152 XI. S. 2G2, 14 Sup. (^t. Gil).

4«o Woodruff V. Bowen, i:Wi lud. 431, 34 N. E. 1113. And see Pauley v.
Steam-Gauge & Lantern Co., 131 N. Y. 90, 29 N. E. 999. A city ordinance
which reciuiivs machinery that is so located as to endanger the lives and
limbs of those employed in the building to be so covered or guarded as to in-
sure such employes against Injur3', gives no right of action to an injured peraon
who Is not an employ^. Gibson v. Leonard, 143 lU. 182, 32 N. E. 182.

*'o Akers v. CMiicago, St. P., M. & O. Ry. Co. (Minn.) 60 N. W. GG9.

*7i Where an ordinance retiuired a motorman to watch for i)ersons on the
track or moving towards it, it was held to be actionable for him to be look-
ing back and talking to some one on the car, whereby plaintiff was injured.
DiUlas Rapid-Transit Ry. Co. v. EUiott (Tex. Civ. App.) 26 S. W. 455. Dam-
ages caused to landowner by defective fence, Gulf, C. & S. F. Ry. Co. v.
Simon ton, 2 Tex. Civ. App. 5.")8, 22 S. W. 285; Welles v. Northern Cent. Ry.
<'o., 150 Pa. St. G20, 25 Atl. 51; Nelson v. St. Louis & S. F. Ry. Co., 49 Kan.
165, 30 Pac. 178. A collection of statutory regulations for the protection and
safety of workmen in mines, with the decisions thereon. Consolidated Coal
& Mln. Co. V. Clay's Adm'r (Ohio) 25 Lawy. Rep. Ann. 848, 38 N. E. 610.

*72 Willy V. Mulledy, 78 N. Y. 310; McLaughlin v. Armtield, 58 Hun, 37G,
12 N. Y. Supp. 164; Periy v. Bangs, 161 Mass. 35, 36 N. E. 68:?.

922 NEGLIGENCE. [Ch. 12

Damages may be recovered when caused by obstructing a high-
way in violation of the provisions of a statute prohibiting railway
companies from obstructing a street crossing longer than five min-
utes.*^^ Moreover, the courts are inclined to liberally view the pur-
pose of a statute, and to so construe it as to include, not only the class
for whose benefit it is primarily intended, but to extend its protec-
tion to all who need such protection.*^*

In Hayes v. Michigan Cent. R. Co., *^'^ an action was brought by
an infant for personal injury sustained bi^oause of the alleged negli-
gence of the railroad company in not fencing its track from a park,
as required by statute. The statute was held not to be a mere con-
tract for the benefit of the public, but to create a duty, "not to the
city as a municipal body, but to the public considered as composed
of individual persons; and each person specially injured by the
breach of the obligation is entitled to his individual compensation,
and to an action for its recovery."

Negligent Violation,

Where a statute has defined precautions to be exercised to avoid
doing harm, compliance with such requirements exonerates. There

47 3 Patterson v. Detroit, L. & L. N. R. Co., 56 Mich. 172, 22 N. W. 260.
An action for damages lies on belialf of a person injured tlirough defend-
ant's omission in disregarding of statute to protect a hatch waj with a rail-
ing. Parlcer v. Barnard, 135 Mass. 116. Defendant is liable to a party in-
jured through negligent omission to comply with city ordinance providing
mode of protection for vaults in public streets. Owings v. Jones, 9 Md. 108-
117.

*7 4 See Brewer, C. J., in Atchison, T. & S. F. R. Co. v. Reesman, 9 O. C. A.
20, 60 Fed. 370, 373. This case held, inter alia, that where an animal^
through failure of a railroad company to fence as required by statute, gets
on ti'ack, and causes derailment of a train, whereby plaintiff, an employ^
on the train, is injured, he can recover. A short note on the rights of em-
ployes of a railroad company injured by violation of statute requiring main-
tenance of fences. Dickson v. Omaha & St. L. Ry. Co. (Mo. Sup.) 59 Am. &
Eng. R. Cas. 312, 27 S. W. 470.

475 Hayes v. Michigan Cent. R. Co., Ill U. S. 228, 4 Sup. Ct 360. Et vldt-
Union Pac. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Chicago v.
Robbins, 2 Black, 418, 4 Wall. 657; Doran v. Flood, 47 Fed. 543. And gen-
erally, as to fencing, see Donnegan v. Erhardt, 119 N. Y. 468, 23 N. B. 1051;
Dayton v. New York. L. E. & W. R. Co., 81 Hun, 284, 30 N. Y. Supp. 783;
Quackenbush v. Wisconsin & M. R. Co., 62 Wis. 411, 22 N. W. 519; Price v.
Railroad Co., 49 Mo. 438-440. And see Thomt R. R. Fences, 571 et seq.

Ch. 12] ESSENTIAL ELEMENTS. 923

would seem to be no duty of extrastatutory care;*^* but the stat-
utory duty may not exclude an additional common-law duty.*^^ No
custom or usage will justify the disregard of a positive statutory
regulation;*^* nor can the consent *^* or other conduct*®® not

47 0 Thus, if a i-allroad company i)rovi(le a beU and whistle of given charac-
ter, to be used in a prescribed way at crossings, the company has performed
its duty when it has furnished and used such bell and whistle, and is not
liable, although the signal so given may not be heard or heeded by a per-
son crossing the track. New York, L. E. & W. R. Co. v. Leaman, 54 N.
J. Law, 202, 23 Atl. 691. Cf. Calhoun v. Gulf, C. & S. F. R. Co., 84 Tex.
226, 19 S. W. 341.

47 7 The giving of the statutory signals is not always the full measure of
the railroad company's duty to those who may be passing over a crossing.
Atchison, T. & S. F. R. Co. v. Hague, 54 Kan. 284, 38 Pac. 257. Therefore,
even if defendant have complied with statutory requirements that his fences
should prevent the escape of his domestic animals, he may still be liable for
breach of common-law duty to maintain the fence required by statute in a
reasonably safe condition, and unlikely to injure his neighbor's animals
while they are on his neighbor's land. Durgin v. Kennett (N. H.) 29 Atl.
414, citing Firth v. Iron Co., 3 C. P. Div. 254; Alabama & V. R. Co. v. Philips,.
70 Miss. 14, 11 South. 602; Chicago, St L. & P. R. Co. v. Spilker, 134 Ind.
380, 33 N. E. 280; McGiH v. Pittsburgh & W. Ry. Co., 152 Pa. St 331, 25 Atl.
540; McDonald v. International & G. N. Ry. Co., 86 Tex. 1, 22 S. W. 939.

47 8 An employ^ in a factory cannot waive the protection afforded by Laws
1892, c. 673, requiring the machinery to be properly guarded. Simpson v.
New York Rubber Co., 80 Hun, 416, 30 N. Y. Supp. 339. See Billings v.
Breinlg, 45 Mich. 65, 7 N. "NV. 722, where it Is customary to violate duty to ex-
hibit lights on boats moving at night. That ordinance regulating speed Is
absolute, is no defense. Cleveland, C, C. & I. R. Co. v. Han-ington, 131 Ind.
426, 30 N. E. 37.

470 Knott V. Wagner, 16 I.ea, 481, 1 S. W. 155; ante, p 203, "Consent"
note 429; Durant v. Lexington Coal Min. Co., 97 Mo. 62, 10 S. W. 484 (here^
however, the question was willful violation); Hines v. New York Cent.
& H. R. R. Co., 78 Hun, 239, 28 N. Y. Supp. 829. Assumption of risk by
plaintiff will not excuse breach of positive statutory duty. Thomas v. Quar-
termaine, 56 Law J. Q. B. 340. And see Baddeley v. Granville, 19 Q. B.
Div. 423, 56 Law J. Q. B. 501.

4 80 A railway company is not relieved of liability for cattle killed by its
trains from its failure to fence its right of way because the owner of the cat-
tle, whose land adjoins the railroad, maintains a fence between his pasture-
land and the right of way. San Antonio & A. P. Ry. Co. v. Peterson (Tex.
Civ. App.) 27 S. W. 9C9-

924 NEGLIGENCE. [Ch. 12

amounting to contributory neglipjonce *** of one individual be con-
strued into a license justifying sii'li violation of law. An employ^
has, liowever, been held to assume the risk incident to known violation
of Htatutory requirements of precaution for his benefit.*** A person
to whom the statutorv duty is owed has a right to assume, in the ab-
sence of contrary knowledge, that such duty has be(»n performed.*®'

Question for Jury,

On the one hand, the violation of a duty prescribed by a statute or
ordinance is regarded as negligence per se, and as entitling an in-
jured party to recover, if no other consideration (as his own negli-
gence, or failure to connect as cause) prevents.*** On the other hand,

*8i One who, knowing? of an obstruction on a street, negligently falls over
the same, cannot predicate her right to recover on an ordinance requiring
a light to be placed on the obstruction. Davis v. California Street Cable
K. Co., 105 Cal. 131, 38 Pac. CAT. '

4 82 Post, p. 101:5, "Master and Sei-vant."

483 A person skating on a river is not ni^ligent in assuming that guards
had been placed, as required by Ten. Code, fi 4l*t). wherever the Ice had been
cut. Sickles v. New Jersey Ice (^o., 80 Uuu, '2VX :U) N. Y. Supp. 10. The
traveler has tlie light to assume that statutorj' signals will be given. Fusili
V, Missouri Pac. U. Co., 45 Mo. App. 535; Crumpley v. Hannibal & St. J.
R. Co., Ill Mo. 152, 11) S. W. 820. Cf. Richmond v. Chicago & W. M. R. Co.,
87 Mich. 374, 4J) N. W. <;21; Duncan v. Missouri Pac. R. Co.. 46 Mo. App.
108. But failure to give signals is not actionable, if defendant actually
knew of the approach of engine or Main on a track. Barber v. Richmond
& D. R. Co., 34 S. C. 444, 13 S. E. CmU.

*84 Thomp. Neg. 419, 1232; Correll v. Burlington, C. R. & N. Ry. Co., 38
Iowa, 120; Shear. & R. Neg. §§ 484, 485; Schlereth v. Missouri Pac. Ry. Co.,
115 Mo. 87. 21 S. W. 1110; Platte & D. Canal & nulling Co. v. Dowell, 17
Colo. 370, 30 Pac. 68; Pennsylvania Co. v. Hensil, 70 Ind. 500 (failure to
keep flagman at crossing). So it is negligence i>er se to nin a train of cars
faster than the ordinance allows. Pennsylvania Co. v. Horton, 132 Ind. 189,
31 N. E. 45; Dahlstroni v. St. I^uis. I. M. & S. R. Co., 108 Mo. 525, 18 S.
W. 919. In Osbonie v. McMasters, 40 Minn. la'J, 41 N. W. 543, in an opin-
ion of simplicity and clearness, Mitchell, J., held that it was negligence per
se in a dinjggist to fail to label a poison as required by statute. But it is
otherwise if he fully explained the dangerous chii meter of the diiig to plain-
tiff. Wohlfart v. Beckert, 92 N. Y. 400. In Slemers v. Elscn. 54 Cal. 418,
proof that plaintiff was injured by a runaway horse, left unfastened in the
street in violation of an ordinance, fully establishetl defendant's negligence.
Et vide Bott v. Pratt. 33 Minn. 323, 2;} N. W. 2;i7. Cf. Kuupfle v. Knicker-
bocker Ice Co., 84 X. Y. 488. Blowing a whistle in violation of statute is

Ch. 12] ESSENTIAL ELEMENTS. 925

there are many authorities which regard such Aiolation not as neg-
ligence per se, or as matter of law, but merely as evidence of negli-
gence to be considered in connection with all the circumstances of
the case.*®* The statute itself may determine this question.*** The

negligence per se. Dugan v. St. Paul & D. R. Co., 40 Mlun. 545, 42 N. W.
538. Cf. Northern l»ac. K. Co. y. Sullivan, 3 C. C. A. 50G, 53 F. 210. Et vide
Evison V. Chicago, St P., M. & O. R. Co., 45 Minn. 370, 48 N. W. 6. It is
negligence at law to fail to give statutory' signals at a street crossing only
when the damage is done to persons or animals endeavoring or intending
to cross the track upon street or highway. Maney v. Chicago, B. & Q. R.
Co., 49 111. App. 105. Cf. Atchison, T. & S. F. R. Co. v. Elder, 149 111. 173,
36 N. B. 565. IMaintilf may recover damages occasioned by the falling of a
sign (in an extraordinary gale) which had been suspended by defendant over
a street, contraiy to the city ordinance, although defendant was not other-
wise negligent. Salisbury v. Hei-schenroder, 106 Mass. 458. In Lane v. Atlan-
tic Works, 111 Mass. 136, it was held that, where Injury was consequent on a
truck standing in the streets, the jury may consider that such standing was
forbidden by the ordinance. Steele v. Burkhardt, 104 Mass. 59. In Hanlon
v. South Boston H. R. Co., 129 Mass. 310, driving at a rate of speed pro-
hibited by ordinance was held to be evidence, but not conclusive evidence,
of negligence on the part of its owner. That fact alone, however, it was
said, would entitle a plaintiff without fault to recover. Et vide Hall v.
Ripley, 119 Mass. 135; Damon v. Scituate, Id. 66. In Hyde Park v. Gay,
120 Mass. 589, running a train in violation of the Sunday law was held to be
actionable, if It direi'tly produced damage to plaintiff, without further proof
of negligence. Et vide Newcomb v. Boston I'rotective Department, 146
Mass. 506, 16 N. E. 555; Parker v. Barnard, 135 Mass. 116; Hanlon v. South
Boston U. R. Co., 129 Mass. 310. Where a powder magazine is maintained
in city limits in violation of city ordinance, and explodes, the owner is liable
for injury caused to stranger by explosion, from whatever cause resulting.
Here the magazine was regarded as a nuisance. Hazard Powder Co. v.
Volger, 7 C. C. A. 136, 58 Fed. 152. So, as to blasting in disregard to city or-
dinance, see Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451.

*85 Vandewater v. New York & N. E. R. Co., 135 N. Y. 583, 32 N. E. 63(>;
Cook V. Johnston, 58 Mich. 437, 25 X. W. :W8 iwhere it was hi'ld not to be neg-
ligence per se to put ashes into a wooden barrel, in violation of an ordinance).
So, In Rainey v. Xew York Cent & H. R. R. Co., 68 Hun, 495, 23 N. Y. Supp.
80, failure of defendant to operate its gates at night is evidence bearing upon
the question of negligence. In Knupfle v. Knickerbocker Ice Co., 84 N. 1'.
488, proof of violation of ordinance prohibiting the leaving of horse untied
or unattended upon the street does not establish nealigence per se. It is
competent, but not conclusive, evidence to be submitted to the Jur>\ Et vide

*8« See note 486 on following page.

926 • NEGLIGENCE. [Ch. 12

statute may, for example, prescribe the duty of insuring safety; as
to construct a boom so as to keep logs safely. Upon proof of failure
to keep logs safely, liability is shown, although there is no evidence

Moore v. Gadsden, 93 N. Y. 12. In Bott v. Pratt, 33 Minn. 323-333, 23 N.
W. 237, this case is said to be of not much value as an authority. In Mc-
Rickard v. Flint, 114 N. Y. 222, 21 N. E. 153, omission of an owner of a
building to comply with statutory requirements for protecting elevator open-
ings is prima facie evidence of negligence. Et vide Rainey v. New York
Cent. & H. R. R, Co., 68 Hun, 495, 23 N. Y. Supp. 80; Massoth v. Delaware
& H. Canal Co., 64 N. Y. 524; Brown v. Buffalo & S. L. R. R. Co., 22 N. Y.
191-198; McGrath v. New York Cent. & H. R. R. Co., 63 N. Y. 522; Allis v.
Leonard, 58 N. Y. 288; letter v. New York & H. R. Co., 2 Abb. Dec. 45S;
Knupfle V. Knickerbocker Ice Co., 84 N. Y. 491; Beislegel v. New York
Cent. R, Co., 14 Abb. Prac. (N. S.) 29; Devlin v. Gallagher, 6 Daly (N.
Y.) 494; Wasner v. Delaware, L. & W. R. Co., 80 N. Y. 212. The same
rule is followed in Nebraska. Burlington & M. R. R. Co. v. Wendt, 12 Neb.
76, 10 N. W. 456; Union Pac. Ry. Co. v. Rassmussen, 25 Neb. 810, 41 N. W.
778. In Galveston, H. & S. A. R. Co. v. Walter (Tex. Civ. App.) 25 S. W. 163, it
was held that failure to keep a fence in good repair, where defendant could
have discovered the defect by the exercise of ordinary care, was sufficient,
and that plaintiff need show no further negligence on the part of defendant
Cf. Atchison, T. & S. F. R. Co. v. Elder, 149 111. 173, 36 N. E. 565. One doing
a lawful act in a manner forbidden by law Is not absolutely liable to an in-
Jury caused to third person by the act. Such violation of law is not con-
clusive evidence of negligence. Lockwood v. Chicago & N. W. Ry. Co., 55
Wis. 50, 12 N. W. 401; Spofford v. Harlow, 3 Allen, 176; Kidder v. Dun-
stable, 11 Gray, 342; Gilmore v. Ross, 72 Me. 194; Larrabee v. Sewall, 66
Me. 376; Baker v. Portland, 58 Me. 199; Burbank v. Bethel Steam-Mill Co..
75 Me. 373; Hayes v. Michigan Cent. R. Co., Ill U. S. 228, 4 Sup. Ct. 369;
Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Northern Pac.
R. Co. V. Sullivan, 3 C. C. A. 506, 53 Fed. 219; Meek v. Pennsylvania R. Co.,
38 Ohio St. 632.

*8«A8 where failure to free track from combustibles is made prima facie
evidence of negligence, Northern Pac. R. Co. v. Lewis, 2 C. C. A. 446, 51 Fed.
058. So right of action sometimes expressly depends upon willful violation
of act. Litchfield Coal Co. v. Taylor, 81 111. 590; Durant v. Lexington Coal
Min. Co., 97 Mo. 484. Gross contributory negligence on plaintiff's part is
no defense to s-tatutory negligence on defendant's part as to customary sig-
nals. Louisville & N. R. Co. v. Howard, 90 Tenn. 144. 19 S. W. 116; Wall
V. Des Moines & N. W. Ry. Co. (Iowa) 56 N. W. 436; Memphis & C. R. Co.
V. Davis (Ala.) 14 South. 643; Hodgins v. Minneapolis, St. P. & S. Ste. M. R.
Co., 3 N. D. 382, 56 N. W. ISO; Sti-aub v. Eddy, 47 Mo. App. 189; Cleveland,
C, C. & St. L. Ry. Co. v. Abney, 43 111. App. 92.

Ch. 12] ESSENTIAL ELEMENTS. 927

of negligence.*" A law affecting railroads, making every railroad
company liable for "damages inflicted upon the persons of passen-
gers, while being transported over its road," except where the injury
arises from the criminal negligence of the person injured, or "when
the injury complained of shall be the violation of some express rule
or regulation of said road actually brought to his or her notice," has
been held constitutional.***

Even in that class of cases which hold a breach of statutory
duty to be negligence per se, in actual practice, the question of
negligence is still submitted to the jury in the great majority of
instances. The jury must ordinarily determine whether there has
been a breach of such duty in fact. According to the better opinion,
an ordinance and a statute stand on essentially the same basis in
this respect.**® Thus, where there is a complete failure and omis-
sion to comply with the requirements of law, there may be negli-
gence per se; but if there is an attempt at such compliance which is

*8T Brown v. Susquehanna Boom Co., 109 Pa. St. 57, 1 Atl. 156. And see
West Branch Boom Co. v. Pennsylvania Joint Lumbei- & Land Co., 121 Pa.
St 143, 15 AtL 509. But thl^ ha8 been held to be a question for the jury.
Turner v. Boston & M. K. Co., l.'S ^iiiss. 261, 33 N. E. 520.

488 Union Pac. R. Co. v. Porter, 88 Neb. 226, 56 N. W. 808. But Gen. St.
c. 93, §§ 13, 14, as amended by Sess. Laws 189-5, p. 304, and Soss. Laws 1891,
p. 281 (known as "Railroad Stock-Killing Acts**)t making railroad companies
absolutely liable for stock killed, and arbitrarily fixing the amount to be
paid, contravene the constitutional provision for equal protection and due
process of law. (Rio Grande Western R. Co. v. Vaughn, 3 Colo. App. 465,
34 Pac. 264, followed.) Rio Grande Western R. Co. v. Chamberlin, 4 Colo.
App. 149, 34 Pac. 1113. But Gen. St. S. C. i 1511, making every i-allroad com-
pany liable for the property of persons injured from fire from its locomotives,
but allowing it to insure any such property, is not a taking of property from a
railroad without due process of law, or a denial of equal protection, within
Const. U. S. Amend. 14. McCandless v. Richmond & D. R. Co., 38 S. O. 103,
16 S. E. 429; Union Pac. Ry. Co. v. De Busk, 12 Colo. 204, 20 Pac. 752;
Mathews v. St. Louis & S. F. R. Co. (Mo. Sup.) 24 S. W. 591; Campbell v.

Missouri Pac. R. Co., 121 Mo. 340, 25 S. W. 936.

*89Ante, p. 99. In Northern Pac. R. Co. v. Sullivan, 3 O. O. A. 506, 53
Fed. 219, It Is said that there are three classes of cases: (1) The nonob-
servance of a city ordinance Is not any evidence whatever of negligence. (2)
It Is evidence of negligence to go to the jury. (3) It Is conclusive evidence
of negligence. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679.
♦'Perhaps the better and more generally accepted rule [relative to the effect

928 NEGLIGENCE. [Ch. 12

imperfect orif^inally, or if there be carelessness in the subsequent in-
spection or maintenance of statutory precautions, and there is dis-
pute with respect to the facts on these points, the decision of such
dispute is for the jury. Thus, the jury is called on to pass upon ac-
tual observance and other considerations of fact as to statutory re-
quirements of signals,*®" telltales,**** fences and cattle guards,*"** and

of the nonobsorvance of an ordluanre] is tJiat such an act on the part of the*
raUroad company Is always to be considered by the juiy as, at least, a circum-
stance from which negligence may be inferred in determining whether the
company was or was not guilty of negligence.*' Whelan v. New York, L. B. &.
W. R. Co., 38 Fed. 15; Clason v. City of Milwaukee, :50 Wis. ;n(;; Baltimore
& O. R. Co. V. State, 29 Md. 27vl\ Flynn v. Canton Co., 40 Md. 312 (a lead-
ing case); Baltimore City Passengjer Ry. Co. v. McDonnell, 43 Md. 534; Bal-
timore & O. Ry. Co. V. Mali (Md.) 5 Atl. 87; Owings v. Jones, 9 Md. 108.

*oo McCormick v. Kansas (Mty, Ft. S. & M. Ry. Co., 50 Mo. App. 109; I^ee
V. Chicago, R. I. & P. Ry. Co., SO Iowa, 172, 45 N. W. 739: Horn v. Baltimore
& O. R. Co., 4 C. C. A. iW(), 54 Fed. 301; Lees v. Philadelphia & R. R. Co.,
154 Pa. St. 56, 25 Atl. 1041; Palmer v. St, Paul & D. R. Co., 38 Minn. 415, :i8
N. W. 100; McXamara v. New York Cent. & H. R. R. Co., 130 N. Y. 650, 32
N. B. 765; Louisville. N. O. & T. Ry. Co. v. French, 69 Miss. 121, 12 South.
:i.'i8; Alexander v. Richmond & D. R. Co., 112 N. C. 720, 16 S. E. 896; Hager v.
Southern Pac. R. Co., 98 Gal. 309, 3:i Pac. 119; Thayer v. Flint & P. M. R.
Co., 93 Mich. 150, 53 N. W. 216; Hubbai-d v. Boston & A. R. Co., 159 Mass.
320, 34 N. E. 459; Vallance v. Boston & A. R. Co., 55 Fed. 364; Newhard v.
!»ennsylvania R. Co., 153 Pa. St. 417, 26 Atl. 105; Bennett v. New York Cent.
& II. R. R. Co., 133 N. Y. 563, 30 N. E. 1149.

491 Hines v. New York Cent. & H. R. R. Co., 78 Hun, 239, 28 N. Y. Supp.'829.
But see Neff v. New York C\mt. & H. R. R. Co., 80 Ilun, 394, 30 N. Y.
Supp. 323.

402 Parker v. Lake Shore & M. S. Ry. Co., 93 Mich. 607, 53 N. W. S:U;
Jacksonville, etc., Ry. Co. v. I*rlor, 34 Fla. 271, 15 Soutli. 760; Man well v.
Burlington, C. R. & N. Ry. Co. (Iowa) 57 N. W. 441; New York, C. & St L. R.
Co. V. Zumbaugh (Ind. App.) 38 N. E. 531; Wines v. Rio Grande W. Ry. Co.. 9
Utah, 228, :W Pac. 1042; Si-lniyler v. Fitchbiu-g R. Co., 65 Hun, 022, 20 N. Y.
Sui)p. 287; CJulf, C. & S. F. Ry. Co. v. Rowland (Tex. Civ. App.) 23 S. W.
421; Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. 096; Chicago, B. kc
Q. R. Co. V. Denncll, 48 lU. App. 251; Mocckley v. Cliicago & N. W. Ry. Co.
(Iowa) 61 N. W. 227; Fremont, E. & M. V. R. Co. v. I'ounder, 36 Neb. 247,
54 N. W. 509; Toledo, St L. & K. ('. R. Co. v. Fly, 8 Ind. App. 602, 36 N. B.
215; Toledo, St L. & K. C. R. Co. v. (^ipp, 9 Ind. App. 244, 36 N. E. 445;
Chisholm v. Northern Pac. R. (^o., 53 Minn. 122, 54 N. W. 1061; Kennedy
V. Chicago & N. W. Ry. Co. (Iowa) 57 N. W. 862; Ham v. Newburgh, D. &
C. R. Co., 69 Hun, 137, 23 N. Y. Supp. 197; Wabash R. Co. v. Ferris, 6 Ind.

Ch. 12] ESSENTIAL ELEMENTS. 929

the rate of speed at which a train *^^ or rehicle *'* is moving, and the
like. Moreover, a breach of statiitorv dutv cannot be the basis of
recovery, unless it is proximately connected as the cause of the
wron^; *°* and the jury determines the question of connection as
cause.*®® Such questions are also carried before a jury by the con-
sideration of contributory nej^ligence, or assumption of risk on be-
half of the defendant.**^

Connection as Cause of Harm,

The mere fact that one is a wronjj:doer, we have seen, does not dis-
qualify' him to recover in tort, unless his wrong is connected as a

App. 30, 32 N. E. 112; Taft v. New York, P. & B. K. Co., 157 Mass. 297,
32 N. E. 1(>8; Peet v. Chieapo, M. & St. P. Ky. Co., 88 Iowa, 520, 55 N. W.
508.

4 03 Rimulng a train in a populous city at a rate of speed j;reatly in excess
of the limit fixed by ordinance may be such jfross and wanton negligenc^^
as to attach liability, despite plaintiff's contributory negligence. Louisville
& N. K. Co. V. Webb, 97 Ala. 308, 12 South. 374; Gratiot v. Missouri Pac. R.
Co., 116 Mo. 450, 21 S. W. 1094. The construction of a statute is for the
court Wilson v. New York, N. H. & H. R. Co. (R. I.) 29 Atl. 300; East St.
Louis Connecting Ry. Co. v. O'Hara, 150 lU. 580, 37 X. E. 917, affirming
49 111. App. 282; Jenson v. Chicago, St, P., M. & O. Ry. Co., 86 Wis. 589, 57
N. W. 359; DriscoU v. Market St. Cable R. Co., 97 Cal. 553, 32 Pac. 591. So
the reasonableness of an ordinance regulating speed of street cars is for the
court, unless particular facts are disputed, and such facts, in the opinion of
the court, are material. Metropolitan St. R. Co. v. Johnson, 90 Ga. 500, 16
S. E. 49. Cf. Central Railroad & Banking Co. v. Brunswick & W. R. Co..
S7 Ga. :WJ, 13 S. E.* 520.

*»* Lind V. Beck, 37 lU. App. 430.

*»3 Post, p. 941.

4»e Billings v. Breinig, 45 Mich. (>5, 7 X. W. 722; Ix)uisville, X. A. & C. Ry.
Co. V. Ou.sier (Ind. App.) 36 N. E. 2iK); ante, c. 1.

♦»T Sandifer v. Lynn, 52 Mo. App. 553; Clements v. Louisiana Ele<*trlc Liglit
Co.,'44 La. Ann. 692, 11 South. 51; Maxey v. Missouri Pac. R. Co., 113 Mo. 1,
20 S. W. 654; Hansen v. Chicago, M. & St. P. Ry. Co., 83 Wis. 631, 53 N. W.
909; Rector v. Boston Electric Light Co., 161 ^^lass. 558, 37 N. E. 773; lllings-
worth V. Boston Electric Light Co., 161 Mass. 5.s:{, 37 X. E. 778; Texas & P.
R. Co. V. Bryant, 6 C. C. A. 138, 56 Fe<l. 799; Cleveland, C, C. & L R. Co. v.
EUlott, 28 Ohio, 340; Wilcox v. Rome & W. R. Co., 39 N. Y. 358 (reviewing
Xew York cases); Galena & C. Union R. Co. v. Dill, 22 111. 265. See Artz v.
Chicago, R. I. & P. R. Co., 34 Iowa, 154; Spencer v. Illinois Cent. R. Co., 29
Iowa, 55; I^ee v. Chicago, R. I. & P. Ry. Co., 80 Iowa, 172, 45 N. W. 739;
Chicago, B. & Q. R. Co. v. Harwood, 80 111. 88; Ernst v. Hudson R. R. Co.,

LAW OF TORTS— 59

930 KE6UGENCE. [Ch. 12

cause of the damage complained of.*** This logical application of
the general doctrine of cause is extended to the converse proposition.
A defendant, although he may have been violating a statutory duty
owed to the plaintiff at the time of the alleged wrong, is not liable
to him in damages, unless such violation caused the damage. Thus,
city ordinances requiring elevators to be built and protected in a
certain way, and to be periodically inspected, do not create a civil
liability against a person who violates them towards one who is in-
jured by an accident that was in no way caused by such violation.***

:» N. Y. 61; Gorton v. Erie U. Co., 45 N. Y. OGO; Korrady v. I^ke Shore &
il. S. Ry. Ck)., 131 Ind. 2G1, 29 N. E. 1069; Bcllefontalne Ry. Co. v. Hunter,
33 Ind. 335; Leavenworth, L. & G. R. Co. v. Rice, 10 Kan. 426; Baxter v.
Troy & B. R. Co., 41 N. Y. 502; Cadwallader v. liOuisviUe, N. A. & O. Ry.
Co., 128 Ind. 518, 521, 27 N. E. 161. When a boy only nine years old. while
walliing on a railroad track, which is usually so used by the people of that
neighborhood, is run over by a train running at a rate of speed prohibited
by ordinance, whether he wjis guilty of contributory negligence is for the
jury. Illinois Cent. R. Co. v. Varuadore (Miss.) 15 South. 933.

ios^vhere animals are injured because of a railroad company's faUure to
fence Us i*oud as required by law, the fact that their owner permitted them
to run at large, contrary to law^, does not, as between him and the compan3%
necessarily constitute contributory negligence. Erickson v. Duluth & I. R.
R. Co. (Minn.) 58 N. W. 822; Austin & N. W. R. Co. v. Saunders (Tex. Civ.
App.) 26 S. W. 128.

4»» Gibson v. Leonard, 143 111. 182, 32 N. E. 182; Hayes v. Railway Co.,
Ill U. S. 228, 240, 4 Sup. Ct. 369; Union Tac. R. Co. v. McDonald, 152 U. S.
262-283, 14 Sup. Ct. 619. And see cases collected in l(f Am. & Eng. Bnc.
liaw, 423, note 1. But see Raihroad Co. v. Walker, 11 Heisk. (Tenn.) 383;
HiU V. Louisville & N. R. Co., 9 Heisk. (Tenn.) 823. As breach of municipal
ordinance as to regulation of fire, Briggs v. New York Cent & H. R. R. Co.,
72 N. Y. 26. Failure to build, protect, and Inspect elevators creates no Ua-
bllity in favor of plaintiff, whose injury was in no way caused by such viola-
tion. Gibson v. Ix^onard, 143 lU. 182, 32 N. E. 182. Failure to give statuioiy
iignal at crossing: Leavitt v. Railroad Co., 5 Ind. App. 513, 31 N. E. 8G0, and 32
X. E. 860; Horn v. Baltimore & O. R. Co., 4 C. C. A. 340, 54 Fed. 301; Chicago,
B. & Q. R. Co. V. Wells, 42 lU. App. 26; McDonald v. Railway Co., 86 Tex.
1, 22 S. W. 939; Cleveland, C, C. & St. L. Ry. Co. v. Richey, 43 lU. App. 247;
Smith V. Railroad Co., 47 Mo. App. 546. Compare Galveston, H. & S. A.
Ry. Co. V. Balkam (Tex. Civ. App.) 20 S. W. SGO. Killing of animals by
trains running at unlawful rate of speed will be presumed to be the re-
sult of defendant's negligence, in the absence of contrary evidence. Cleve-
land, C, O. & St L. Ry. Co. v. Ahrens, 42 lU. App. 434. But see St. Louis

Ch. 12] ESSENTIAL ELEMENTS. 931

264. In order that liability may attach for negligent con-
duct, two steps must be taken: Facts must be shown
sufficient to justify an inference of negligence, and
that inference must be drawn. Ordinarily, dispute
in testimony as to fact, and drawing the inference
of negligence therefrom, is for the jury; but both
matters may be determined by the court as ques-
tions of law.

Province of Court and Jury.

'*The jury are not judges of law in any case, civil or criminal. The
determination of the law applicable to the cause on trial is no part
of their right or duty." ^°® The court determines the admissibility of
evidence, passes upon the law, and instructs the jury with reference
thereto; and the jury applies the law to the facts in evidence. "^^^
It is therefore the normal function of the jury both to find whether
the facts in evidence are sufficient to justify the inference and to
draw or deny the inference of actionable negligence, and to deter-
mine the extent of the recovery. In many cases, however, courts
pass not only upon the law, but also upon the facts, and either in-
struct the jury as to what their verdict shall be or take the case
away from them.**®^

& S. F. Ry. Co. V. Sageley, 56 Ark. 549, 20 S. W. 413; Georgia RaUroad &
Banking Co. v. Parks, 01 Ga. 71, 16 S. B. 266; Georgia Railroad & Banking
Co. V. Middlebrooks, 91 Ga. 76, 16 S. E. 980; Blrmingliam M. R. Co. v. Harris,
98 Ala. 326, 13 South. 377; Vallance v. Boston & A. R. Co., 55 Fed. 364.
Cases as to violation of statutory duty as proximate cause of damage will be
found collected in 16 Am. & Eng. Enc. Law, p. 423, note 1.

800 Com. V. McManus (Pa. Sup.) 22 Atl. 761. See 30 Am. Law Reg. 731,
collecting cases in great number. There is no respectable adverse English
decision, and only one single well-considered American case. State v. Croteau,
23 Vt. 14, in which the court was divided. A ballad was, however, in vogue
at the time of the Fox libel act (1792), "For twelve honest men have decided
the cause, who are judges alike of the facts and the laws." State v. Croteau,
30 Am. Law Reg. 745. And this anomaly in libel is still recognized. Ante,
p. 500, "Defamation."

501 Sears v. Chicago. B. & Q. R. Co., 43 Neb. 720, 62 N. W. 68, and cases
collected.

BO 2 As applied to negligence, generally, see Cope v. Hampton Co. (S. C.) 19
S. E. 1018; Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404, 14 N. E. 391;
Evans v. Adams Exp. Co., 122 Ind. 362, 23 N. B. 1039; Directors, etc., v.

932 NEGLIGENCE. [Cll. 12

Same — Analysis of Functions,

The confused subject of when negligence is a ouestion of law,
and when of fact, may, perhaps, be clarified by analyzing w^hat mat-
ter may properlj^ be for the court, and what for the jury.*^®^ Three
different elements essential to the plaintiffs recovery may be either
for the court or for the* jur\', as circumstances may determine: (a)
Facts showing the existence of a duty owed by the defendant to the
plaintiff; (b) the violation of that duty in fact by the defendant;
(c) damages to the plaintiff, conforming to legal standards.

The facts to be proved may or may not show tlu» duty owed to the
plaintiff by the defendant. With respect to the violation of a com-
mon-law duty, the same proof usually shows the duty and its viola-
tion. So, in cases to which res ipsa loquitur applies, and, a
fortiori, where an instrumentality is so dangerous that its owner-
ship or custody attaches responsibility, despite the exercise of great-
est diligence, the inference of duty is a matter of law-. And, gen-
erally, w^here undisputed facts show negligence which is the pri-
mary', substantial cause of the injury complained of, and there is

Jackson, L. R. 3 11. L. 193; Ohio & M. R. W. Co. v. Collarn, 73 Ind. 261;
Baltimore & O. & C. R. Co. v. Walborn, 127 Ind. 142, 26 N. B. 207; Cincin-
nati, H. & I. R. Co. V. Butler, 103 Ind. 31. 2 N. E. 138; Chicago & E. I. Ry.
Co. V. Hedges, 118 Ind. 5, 20 N. B. 530; Indiana, B. & W. Ry. Co. v. Ham-
mock, 113 Ind. 1, 14 N. B. 737; Schofleld v. Railway Co., 114 U. S. 615,

5 Sup. Ct. 1125; Belief on taine Ry. Co. v. Hunter, 33 Ind. 335; Indiana, B.

6 W. Ry. Co. V. Greene, 106 Ind. 279, 6 N. E. 603. However, it is error to
state to the Jury a group of circumstances as to which there has been evi-
dence on the trial, and instruct that such facts amount to negligence per se;
the question of negligence being for the jury. Chicago, B. & Q. R. Co. v.
Oleson, 40 Neb. 889, 59 N. W. 354. And it is said In Clerk & Lindsell on
Torts (357-391) that the common practice is to speak of certain classes of
acts as negligent acts, and not merely as evidence of negligence; but it is
apprehended that negligence can never be predicated of an act as matter of
law, the character of the act being in each case a question for the Jury. Even
thougli the inference of want of due care be irresistible, still the judge can-
not withdraw the question of negligence from the jury, and, if the jury choose
perversely to find that there was no negiligence, the only remedy is, appar-
ently, a new atrial.

003 See article on "Law and Fact in Jury Trial," by J. B. Thayer, in 4 Harv.
Law Rev. 147. For illustration of a prudent man*s conduct, as defined by a
judge, see Cox v. Burbidge, 13 C. B. (N. S.) 430; Dixon v. Bell, 5 Maule &
S. 198.

€h. 12] ESSENTIAL ELEMENTS. 933

no just ground for imputing contributory negligence to the plain-
tiff, it i8 not error to instruct the jury that the defendant is guilty
of negligence, and that the disput(*d issue is the question of dam-
ages.*®*

On the other hand, there may be conduct inducing harm (i. e. vio-
lation and damage), but, as a matter of law, no duty; ''"^ as in the
clearest cases of an indei)endent contractor. This is also true* in
cases of damages incident to authonzed act. And, again, the facts
may be undisputed, and the jurj- l)e called upon to determine
whether the conduct was negligent.®'*^ But with re8i)ect to con-
tract duty, pr(X)f of contract, for example, with a commcm carrier
of goods, is distinct from proof of its violation, for examph», by de-
struction of the goods. Here the court llnds the duty as a matter
of law, and, if there is dispute as to facts, the violation and damage
may be left to the jury. If there is no dispute as to the facts, be-
cause the plaintiff wholly fails to sufficiently prove a contract or dam-

•0 5 Union I'ac. R. Co. v. McDonnald, 42 Fed. 579, affirmed in 17^2 U. S. 2r.2,
14 Sup. Ct C19. And see opinion of Macfaiiane, J., In Blucdorn v. Missouri
Pao. Ry. Co. (Mo. Sup.) 24 S. W. 57-<K).

506 When the facts are clearly settled, and ttie course wliioli common pru-
dence dictated can be clearly discerned» the courts should decide the question
as a matter of law. Shear. & R. Nep. § 5(5, citing Beisiegal v. Railroad Co.,
40 N. Y. 9; Stubley v. Railroad Co.. L. R. 1 Kxch. 13; (Yafter v. Metro-
politan R. Co., L. R. 1 C. P. 300. And see Bev. Xeg:. 11; Hathaway v. Rail-
road Co., 29 Fed. 489; Abbett v. Railway Co.. 30 Minn. 4S2, 1(5 N. W. 2«(5;
Reading & C, R. Co. v. Ritchie, 1U2 I»a. St. 425; Detroit & M. R. Co. v. Van
Steinburg, 17 Mich. 99. Thus, it is ne;rllgence which will justify the with-
drawal of a case from the jury for a licensee to walk on or near a track in
a railroad yard when, in the exercise of due tare, it is admitted that he
could have walked safely by the side of the track. Tucker v. Baltimore &
O. R. Co., 8 C. C. A. 416, 59 Fed. 908. And this is true although the defend-
ant introduced no evidence. Kane v. Railway Co., 128 IT. S. 91, 9 Sup. Ct.
IC; Mitchell v. Railroad Co., 140 U. S. 513, 13 Sup. Ct. 250; Delaware, L.
& W. R. (^o. V. Converse, 139 U. S. 4(59, 11 Sup. Ct. 5(59; Central Tiansp. (^o.
V. PuUman's Palac<^Car Co., 139 r. S. 24, 11 Sup. Ct. 478. Cf. Shaw v.
IMiiladelphla, 159 Pa. St. 487, where it was left to the jury to determine the
amount of damages caused by plaintiff's being thrown from a wagon because
of dangerous higiliway, the testimony being such "as to leave no doubt as
to the alleged negligence of the defendant."

507 Vinton v. Schwab, 32 Vt. 612; Ohio & M. R. W. Co. v. Cnllarn, 73 Ind.
261.

934 KEGJ.IGENCE. [Ch. 12

age, the court may withdraw the case from the jury; or,, if the facts
be sufficiently proved, a recovery may be directed, and the amount of
the judgment left to the jury. And so, with respect to a statutory
duty, in many cases only violation and damage need be shown, inas-
much as the court judicially knows all general laws, including the
particular statute by which a duty is created. But especially where
the cause of action accrued under the statute peculiar to one state,
and the suit is brought under the different statutes of another state,
then it may be necessary both to plead and prove such statutes. On
proof of the violation of such duty, sometimes the court will in-
struct the jury to draw a conclusive presumption, sometimes a
prima facie presumption, of actionable negligence, and sometimes
it will leave such violation to the jury, to be considered, in connec-
tion with other circumstances, in determining the defendant's lia-
bility.

And, finally, proving damages is, strictly speaking, an essen-
tial part of the plaintiff's duty, although not the whole. He can-
not, however, show actionable negligence without proof of damage.
Courts may leave the extent of his recovery to the jury, but they
will determine what damages are legal. Thus, they will exclude
remote damages, and will determine, in some cases, what damages
are remote. They will also find as a matter of law that damages of
other descriptions are too trifling, uncertain, speculative, or other-
wise objectionable in their character, to become the basis of re-
sponsibility.

266. The burden of proof is on the plaintiff to show the
negligence of the defendant, except —
EXCEPTIONS— (a) Where proof of some contract or un-
dertaking, and damage, makes out a prima fade
case;

(b) Where the thing is shown to be under the manage-

ment of the defendant, and the accident is such as,
in the ordinary course of things, does not happen
if those -who have the management use proper care;
and

(c) Where this rule is changed by statute.

Ch. 12] ESSENTIAL ELEMENTS. 935

There is logically applied to the law of negligence the ordinary
rule governing the production of evidence, that the obligation of
proving the fact lies upon the party who substantially asserts the
affirmative of the issue.^^^ "Where the evidence is equally consist-
ent with either view, — the existence or nonexistence of negligence,
— it is not competent for the judge to leave the matter to the jury." ^°'
Indeed, the law, so far from not presuming negligence without evi-
dence, recognizes a presumption that at least ordinary care was
used.*^^" The plaintiff must establish his case by a preponderance
of evidence; ^^^ but the rule of criminal law does not apply, and he
is not bound to establish it beyond a reasonable doubt, '^^^ or to the
satisfaction of the jury.*^* The mere happening of an accident is
not sufficient evidence of negligence to be left to the jury. The
plaintiff must show some affirmative evidence of the defendant's
negligence/^* Thus, no inference of negligence follows from the

808 1 GreenL Ev. § 74, In Ohlweiler v. Lohmann, 86 Wis. 75, 59 N. W. 078,
the burden was on plaintiff as to one proposition, and on defendant as to
another. Futher, see Hayes v. Michigan Cent R. Co., Ill U. S. 22H, 4 Sup.
Ct 369; Rosenfield v. Arrol, 44 Minn. 395, 46 N. W. 768; Searles v. Man
hattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; Welch v. Jugenheimer, 56 Iowa, 11,
8 N. W. 673; Allen v. WiUard, 57 Pa. St. 374; Dowell v, Guthrie, 99 Mo.
653, 12 S. W. 900.

509 Williams, J., In Cotton v. Wood, 8 C. B. (N. S.) 568. And see Ham-
mack T. White, 11 C. B. (N. S.) 588, 31 Law J. C. P. 129; Marfell v. South
Wales R, Co., 8 C. B. (N. S.) 525.

810 Weiss V. Pennsylvania R. Co., 79 Pa, St. 387, 390; Lansing v. Stone, 37
Barb. (N. Y.) 15; Lyndsay v. Connecticut & P. R. Co., 27 Vt 643; Brown v.
Congress & B. St. Ry. Co., 49 Mich. 153, 13 N. W. 494; Allen V. WiUard,
57 Pa. St. 374. And see Watson v. Bauer, 4 Abb. Prac. (N. S.) 273; Mc-
Cully V. Clarke, 40 Pa. St. 399.

611 Daniel v. Metropolitan R. Co., L. R. 3 C. P. 216, 591, affirmed in Wil-
liams V. Great Western R. Co., L. R. 9 Exch. 157; Philadelphia, W. & B.
R, Co. V. Stibbing, 62 Md. 504; Hayes v. Michigan Cent R. Co., Ill U. S.
228-241, 4 Sup. Ct. 369. And see CrandeU v. Goodrich Transp. Co., 16 Fed.
75; Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562.

512 Whitney v. Clifford, .57 Wis. 156, 14 N. W. 927; Welch v. Jugenheimer,
56 Iowa, 11, 8 N. W. 673; EUis v. Buzzell, 60 Me. 209; EUiott v. Van Buren,
33 Mich. 49.

BIS Rtratton v. Central City H. R. Co., 95 111. 25.

514 Hammack v. White, 11 C. B. (N. S.) 588; Curtis v. Railway Co., 18 N. Y.
534; Knight v. Cooper, 36 W. Va. 232, 14 S. E, 999. The plaintiff was bound

936 NEGLIGENCE. j^Ch. 12

collision on a public way of two persons, or of a traveler and a
vehicle, or of two vehicles.'*' ** It cannot be assumed, in the absence
of all explanation, that a train ran over a man, more than that a
man ran a^ains>t a train.^'® The circumstances under which the
mere* happening of an accident is inaccurately said to give rise to a
presumption of that negligence will be subsequently considered.*^''
The burden of proof imposes on the plaintiff the necesi«ity of
showing the defendant to have been the juridical cause of the dam-
age.'*'^ Absolute jii-oof is not necessary, but the matter must not

to introduce evidoiife from which the jury might properly infer that the ac-
<i(lent was caused by the defendant's neglifirence, but was not required to
point out the particular act or omission which caused tlie accident. Griffin
V. Boston & A. R. Co., 148 Mass. 143, 19 N. E. 1GB; Stewart v. Ohio River R.
Co. (W. Va.) 20 S. E. 922; Mooney v. Connecticut River Lumber Co., 154
Mass. 407, 28 N. E. 852; Mol)ile & O. R. Co. v. Godfrey, 155 lU. 78, 39 N. E.
590.

513 Hazel V. People's Pass. Ry. Co., 132 Pa. St 90, 18 Atl. 1116; Piollet v.
Simmers, 100 Pa. St. 95; North Side St, Ry. Co. v. Tippins (Tex. App.) 14
S. W. 1067; Broschart v. Tuttle. 59 Conn. 1, 21 Atl. 925; Cotton v. Wood, 8
C. B. (N. S.) 568, 29 Law J. C. P. 333.

616 Lord Halsburj', in Walvelln v. London & S. W. R. Co., 12 App. Cas. 41.
at page 45.

C17 Post, p. 938.

518 Thus, wliere a section hand stepped* aside to let a passenger train pass,
and a stone fell out of ballast and injured him, he could not recover unless
he could show what force threw the stone. StefFon v. Chicago & N. W. Ry.
Co., 46 Wis. 259, 50 N. W. 34S. Cause may be proved by opinion evidence
based on i)ersonal knowledge; e. g. w^here fire started, Union Pac. R. Co.
V. Gilland (Wj-o.) 34 Pac. 953; or that embankment caused overflow. Gulf,
C. & S. F. R. Co. V. HaskeU, 4 Tex. Civ. App. 55(), 2:^ S. W. 546; or that de-
fect in roadbed caused accident, Horan v. Chicago. St. P., M. & O. Ry. Co.
ilowa) 56 N. W. 507. That an inexperienced fireman ran the engine w^hich
damaged plaintiflf does not show connection as cause. Mexican Nat. Ry. Co.
V. Mussette, 86 Tex. 708, 26 S. W. 1075. Evidence that, while plaintiff was
attempting to uncouple cars in a yard, the cars moved suddenly, throwing
him off, and Injuring him, and that the railroad company had failed to pro-
mulgate and enforce rules In regard to its work, is insntficient to Justify a
recovery, in the absence of any evidence showing a causal connection be-
tween the accident and the failure to have rules. Rutle<lge v. Missouri Pac.
Ry. Co., 110 Mo. 312, 19 S. W. 38. But where plaintiflf's intestate, about half
an hour after starting home, was found on the sidewalk at the end of a
temporary bridge over an excavation In the sidewalk, and the hand rail at
that end of the bridge was broken, and there is evidence that the bridge was

Ch. 12] ESSENTIAL EI.EMENTS. 937

be left in equilibrio.'^** The proof may be so clear as to justify the
court in directing the jury to find for the plaintiff, '^^^ or so insuffi-
cient as not to sustain a verdict.*^^^ Thus, the mere occun-ence of
an abcess a year after a fall does not sufficiently establish the con-
nection of the defendant's nej^ligence occasioning the fall as the
cause of the injury complained of.*^^ Ordinarily, connection as
cause is fop the jury."**

Contract or Undertaking,

The burden of proof of negligence, notwithstanding its negative
character is on the party making the allegation of nonfeasance or
negligence/'* Thus, the burden of proof resting on the plaintiff

defective, it is sufficient to sustain a fiiidinj; tljat Intestate's death was caused
by the defective condition of the bridge. Willdigg v. City of Brooklyn (Sup.)
30 N. Y, Supp. 75.

"• Orth V. St. Paul. M. & M. Ry. Co., 47 Minn. 384, 50 N. W. 363. In an
action for injuries causing death, where tlie evidence showed that deceased
was found lying beside defendant's traclcs, severely injured, soon after de-
fendant's train, from which he had alighted, had passed, but failed to show
more particularly how the injury was received, though it appeared that de-
ceased, while on the train, was obviously ill, and in need of defendant's help
to reach a place of safety, a judgment for defendant will not be disturbed.
Brady v. Old Colony R. Co., 1G2 Mass. 408, 38 N. E. 710.

620 Bluodom V. Missouri Pac. Ry. Co. (Mo. Sup.) 24 S. W. 57.

621 Mere theories as to possible cause of movement of an elevator, causing
plaintlft'*s death, does not justify verdict for plaintiff. Murph^' v. Hays, OS
Hun, 450, 23 N. Y. Supp. 70. The mere starting of a freight train, unex-
pectedly throwing a brakeman off a rear car, is not actionable unless it
was done suddenly, violently, or negligently. Johnston v. Canadian Pac.
Ry. Co., 50 Fed. 886. But see Northeastern R. Co. v. Barnett, 89 Ga. 399,
15 S. E. 492. Sudden and unexplained starting of "blood miU" out of usual
manner of its operation is evidence of some want of care in its construction
or condition. Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149. As to leakage of
throttle valve, see Connors v. Durite Manufg Co.. 156 Mass. 163, 30 N. B.
559. Unexpected backing up of engine may be negligence. Barnett v.
Northeastern R. Co., 87 Ga, 199, 13 S. E. 646. And see Latremouille v. Ben-
nington & R. Ry. Co., 6;i Vt. 336, 22 Atl. 65(5; Wanamaker v. City of Rochester
(Sup.) 17 N. Y. Supp. 321. As to sudden starting of machinery, see Blanton
V. Dold, lOJ) Mo. 6i, 18 S. W. 1149; Connors v. Durite Manuf'g Co., 156 Mass.
163, 30 N. E. 559; Hudson v. Charleston, C. & C. Ry. Co., 55 Fed. 248.

522 St. Louis & S. F. Ry. Co. v. Farr, 6 C. C. A. 211, 56 Fed. 994.
528 Ante, c. 1.

524 Crowley v. I'age, 7 Car. & P. 780; Clark v. Si)ence, 10 Watts (Pa.) 335;
Storj% Bailm. §§ 454-457; 1 Greeul. Ev. § 81.

938 NEGLIGENCE. [Ch. 12

to show negligence on the part of a physician, '^^'^ a lawyer or other
professional man,"^® is not sustained by mere proof of contract, and
of damage. With respect to carriers of passengers '^^^ and of freight,
proof of contract, of the commencement of passage or transportation,
and of damage, raises a presumption of negligence on the part of the
carrier, without further proof on plaintiff's cause. On similar prin-
ciples, it has been held that where a message, delivered to a tele-
graph company for transmission as an unrepeated message, is plainly
and distinctly written, and such mistake is made in its transmission
that it reaches the connecting company, after passing over only a
single line, in a materially altered condition, there is, in the absence
of explanation, sufficient evidence of negligence to justify a recovery
against the company. '^^^

Res Ipsa Loquitur.

*While it is true, as a general proposition, that the burden of
showing negligence on the part of the one occasioning an injury
rests in the first instance upon the plaintiff, yet, • ♦ ♦ when
he has shown a situation which could not have been produced eX'
cept by the operation of abnormal causes, the onus rests upon the
defendant to prove that the injury was caused without his fault." ^^^
When the physical facts surrounding an accident in themselves cre-
ate a reasonable probability that the accident resulted from negli-
gence, the physical facts themselves are evidential, and furnish
what the law terms evidence of negligence, in conformity with the
maxim, "Res ipsa loquitur." °^^ It would seem more accurate to
say, not that negligence is presumed from the mere fact of the in-
jury or accident, but, rather, that it may be inferred from the facts
and circumstances disclosed, in the absence of evidence showing

62 5 Swanson v. French (Iowa) 61 N. W. 407.

B26 Allan V. State S. S. Co., 132 N. Y. 1)1, 95, 30 N. E. 482, and cases cited.

62 8 Post, p. 1078.

629 Marr v. W. U. Tel. Co., 85 Tenn. 529. 3 S. W. 49C.

630 Ruger, C. J., In Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562.
Fall of hydraulic elevator raises presumption on part of defendant, its owner.
Tieadwell v. Whittier, 80 Cal. 574, 22 Pac. 206; Dehring v. Comstoek, 78
Mich. 53, 43 N. W, 1019.

631 Houston v. Brush, 66 Vt. 331, 29 Atl. 380, 383 (a leading case, collecting
and Commenting on authorities).

Ch. 12] ESSENTIAL ELEMENTS. 939

that it occurred without negligence."'* Thus, "whenever a car or
train leaves tlie track, it proves either that the track or the macMnery,
or some other portion thereof, is not in a proper condition, or that
the machinery is not properly operated, and presumptively proves
that the defendant, whose duty it is to keep the track and machinery
in the proper condition, and to operate it with the necessary pru-
dence and care, has in some respect violated this duty; and the
court may properly charge that such owner was bound to show some
explanation of the cause of the accident." *" So, in the leading
English case of Byrne v. Boadle,*^** a barrel of flour fell from a ware-
house, and struck the plaintiff, who was lawfully passing on a public
street; and in Kearney v. Railway Co.,'*''^ a brick fell from a bridge
and struck and injured the plaintiff. It was held that the maxim^
"Res ipsa loquitur," applied to the cases.'*'** In Mullen v. St. John,"^

«»2 Huey v. Gahlenbeck, 121 Pa. St. 238, 15 Atl. 520; Alpern v. Churchill,
63 Mich. 007, 19 N. W. 549; Holbrook v. Railway Co., 12 N. Y. 236, 64 Am.
Dec. 502, note. Compare Shear. & R. Neg. § 13.

688 G rover, J., in Edgerton v. New York & H. R. Co., 39 N. Y. 227, 229.

»»*2 Hurl. & C. 722, 33 Law J. Exch. 13; Bigelow, Lead. Cas. 578, where
a yaluable discussion will be found. Compare Scott v. London & St. K.
Docks Co., 3 Hurl. & C. 596, 'ai Law J. Exch. 220, 393.

B8 5L. R. 6 Q. B. 759-762. Et vide TaiTy v. Ashton, 1 Q. B. Div. 314; In-
land & Seaboard Coasting Co. v. Tolson, 139 U. S. 551-554, 11 Sup, Ct. 653;
The William Branfoot, 3 C. C. A. 155, 52 Fed. 390; Miller v. Railway Co., 25
N. Y. 753. But the fact that a fractured limb is shorter when the patient is
discharged is not prima facie evidence of physician's negligence. Piles v»
Hughes, 10 Iowa, 579.

686 Brigg V. Oliver, 4 Hurl & C. 403; Skinner v. London, B. & S. C. R. Co.,
5 Exch. 787 (inference of negligence from coUisiou); Scott v. London & St.
K. Dock Co., 3 Hurl. & C. 596; Whit. Smith, Neg. § 22.

637 57 N. Y. 567. And see Gleeson v. Virginia Midland R. Co., 140 U. S.
435, 11 Sup. Ct. 859 (landslide). Lyons v. Rosenthal, 11 Hun, 46; Kirst v.
Raihroad Co., 46 Wis. 489, 1 N. W. 89; Smith v. Gaslight Co., 129 Mass. 318;
Clare v. Bank, 1 Sweeny, 539; Brehm v. Railway Co., 34 Barb. 256; Sullivan
V. Raih-oad Co., 39 La. Ann. 800, 2 South, 586; Hays v. Gallagher, 72 Pa.
St. 136; Thomas v. Telegraph Co., 100 Mass. 156; Dixon v. Pluns, 98 Cal.
384, 33 Pac. 268; Cummings v. National Furnace Co., 60 Wis. 603, 18 N. W.
742. "Cases resting in contract have frequently received our consideration,
and they are generally free from difticulty, because the mere happening of
the accident will be prima facie evidence of a breach of contract, without
further proof ; while in those not resting in coutnict it must not only appear
that the accident happened, but the sui-rounding circumstiinces must be such

^40 NEGLIGENCE. [Ch. 12

the walls of a building, without any special circumstances of storm
and violence, fell into one of the streets of the city of Brooklyn,
knocking down a woman who was on the sidewalk, and seriously
injuring her. Dwight, C, said: "There was some evidence tending
to show that it was out of repair. Without laying any stress upon
the affirmative testimony, it is as impossible to conceive of this
building so falling, unless it was badly constructed or in bad repair,
as it is to suppose that a seaworthy ship would go to the bottom
in a tranquil sea and without collision. The mind, necessarily,
seeks for a cause for the fall. That is apparently the bad condition
of the structure. This, again, leads to the inference of negligence,
which the defendant should rebut."

On the other hand, for example, a switchback at a pleasure re-
sort on the line of a street-railway company which advertises it, is
not in itself dangerous or unlawful. Therefore, such street-railway
company is not liable, on mere proof of damage caused by the care-
lessness of the owner of the switchback or his servants. '^'^ Indeed,
the English courts have held that the presumption of negligence
could not be extended to all accidents, but only to those where the
accident happens in course of the defendant's business, over which
he is bound to exercise proper control.*^*®

as to ra!se the presumption of a failure of duty on the part of the defendant
towards the plaintiff." Article, "Res Ipsa Loquitur," Judge Seymour D.
Thompson, in 10 Cent. Law J. 2(51, approved in Howser v. Cumberland &
P. R, Co. (Md.) 30 Atl. 900. This caae held that in an action for Injuries
caused by plaintiff, who was walking along a pathway outside of a railroad
company's right of way, being struck by cross-ties as they fell from a mov-
ing train, the mere fact that the ties fell from a gondola car, on which they
were loaded, is, under the doctrine of *'res ipsa loquitur," prima facie evi-
dence of negligence on the part of the railway company. (McSherry and
Fowler, .7 J,, dissenting.)

53 8 Knottnerus v. North Park St. Ry. Co., 03 Mich. 348, 53 N. W. 529. And
seeOalvin v. Gualala Mill Co., 98 Cal. 268, 33 Pac. 93 (starting fire); Cross
V. California St. Cable Ry. Co.. 102 Cal. 313, 36 Pac. 673 (driving heavily load-
ed team on street-car track); Rascher v. East Detroit & G. P. Ry. Co., 90 Mich.
413, 51 N. W. 463; Dehring v. Comstock, 78 Mich. 153, 43 N. W. 1049; Cor-
rigan v. Union Sugar Retinery, 98 Muss. 577.

630 Scott V. London & St. K. Dock Co., 3 Hurl. & C. 596; Higgs v. Maynard,
12 Jur. (N. S.) 705: Welfare v. Railway Co., L. R. 4 Q. B. 693; Smth v. Rail-
way Co., L. R. 2 C. P. 10"; Pol. Torts, 224.

Ch. 12 j ESSENTIAL ELEMENTS. 941

Statutory Changes.

Many statutes have changed the common-law rule of the various
states as to the matter of proof of negligence. New rule^ have
been directly introduced. Thus, it has been enacted that the bur-
den is on the owners of reservoirs to exonerate themselves by rebut-
ting the statutory presumption of negligence from the escape of wa-
tevB.^*^ So a presumption that damages produced by a railroad
company to persons, servants, strangers, or property, in some states,
is by^ statute created from the happening of an accident.''*^ The
presumption of negligence from the starting of fires is constitution-
g^j 542 Whether or not a violation of a statutory duty is negligence
per se, or only evidence of negligence, to be considered with other
circumstances, has been previously considered.****

266. The burden of shoiJHiig contributory negligence is
generally, but not invariably, held to be on the de-
fendant.

It is a generally recognized rule that contributory negligence is
a defense, to be specially pleaded; **** and that the burden is on the
defendant to establish contributory negligence by evidence.'**'* He

ft-io Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 Pac. 1111.

«*i Laws Fla. 1890, p. 113, c 40; Duval v. Hunt, 34 Fla. 85, 15 South. 876;
JacksonviUe, T. & K. W. Ry. Co. v. Jones. 34 Fla. 28G, 15 South. 924. So
In Georgia. Georgia Midland & G. R. Co. v. Evans, 87 Ga. 673, 13 S. E. 580;
Savannah, F. & W. Ry. Co. v- Slater (Ga.) 17 S. E. 350.

642 Campbell v. Mis.souri Pac. Ry. Co., 121 Mo. 340, 25 S. W. 936. And see
Galvin v. Gualala MiU Co., 08 Cal. 208, 33 Pac. 93.

B48 Ante, p. 918, "Statutory Negligence."

844 Union Pac. Ry. Co. v. Tracy, 19 Colo. 331, 35 Pac. 537; Bouknight v.
Charlotte, C. & A. R. Co. (S. C.) 19 S. B. 915; House v. Meyer, 100 Cal. 592,
35 Pac. 308; Richmond & D. R. Co. v. Hissong (Ala.) 12 South. 393; Kansas
City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; Willis v. City of
Perry (Iowa) 60 N. W. 727; Louisville & N. R. Co. v. Markee (Ala.) 15 South.
511.

S4B Hough V. Railway Co., 100 U. S. 213; Amato v. Nortlu-rn Pac. R, Co.,
46 Fed. 501; Texas & P. R. Co. v. Volk, 151 U. S. 73, 14 S. (^t. 2*39; Pennsyl-
vania Co. V. Roy, 102 U. S. 451; Inland & Seaboard Coasting Co. v. Tolson.
139 U. S. 551-557, 11 Sup. Ct. 653, New York, L. E. & W. R. Co. v. Madison,
123 U. S. 524, 8 Sup. Ct 21<J; Baker v. Westmoreland & C. Nat. Gas Co.. 157

042 NEGLIGENCE. [Ch. 12

may also avail himself of anj- evidence given by the plaintiff.^**
But the def(»nso may be founded on facts shown by the plaintiff's
evidence alone.^*^ And if the evidence shows the plaintiff to be
guilty of contributory negligence, he cannot recover. **** On the
other hand, however, in some jurisdictions this rule is not in force,
and the plaintiff must aver **• and prove ^^^ that he exercised due
care, or was not guilty of contributory negligence.

Pa. St. 593, 27 Atl. 789; Downey v. Pittsburg, A. & M. TYactlon Co.. 161 Pa. St.
131, 28 Atl. 1019; Card v. Eddy (Mo. Sup.) 24 S. W. 746; Bluedom v. Missouri
Pac. Ry. Co. (Mo. Sup.) 24 S. W. 57; Southern Pac. Co. v. TomUnson (Ariz.)
33 Pac. 710; Thorpe v. Missouri Pac. Ry. Co., 80 Mo. 650, 2 S. W. 3; Fulks
V. St Louis & S. F. tly. Co., Ill Mo. 335, 19 S. W. 818; Crumpley v. Han-
nibal & St. J. R. Co., Ill Mo. 152. 19 S. W. 820; Jordan v. City of Ashe-
viUe, 112 N. C. 743, 16 S. B. 7G0; Bi-omley v. Birmingham Mineral R. Co.,
95 Ala. 397; 11 South. »41; Birmingham Mineral R. Co. v. Wilmer, 97 Ala. 165.
11 South. 886; Denver & R. G. R. Co. v. Ryan, 17 Colo. 98, 28 Pac. 79;
Spurrier v. Front St. Cable Ry. Co., 3 Wash. St 659, 29 Pac. 346; Merrill
V. Eastern R. Co.. 139 Mass. 252, 29 N. E. 666; City of Omaha v. Ayer, 32
Neb. 375, 49 N. W. 445; Anderson v. Chicago, B. & Q. Ry. Co., 35 Neb. 95.
52 N. W. 840; St. Louis & S. F. Ry. Co., v. Weaver, 35 Kan. 412, 11 Pac. 408;
Dugan V. Chicago, St P., M. & O. Ry. Co., 85 Wis. 609, 55 N. W. 894; Jones
V. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679; Lorlmer v. St Paul City
Ry. Co., 48 Minn. 391; Dublin, W. & W. R. Co. v. Slattery, 3 App. Cas. 1155
(per Lord Hatherly, page 1169; per Lord Penzance, page 1173); Wakelln v.
London & S. W. Ry. Co., 12 App. Cas. 41, 43, 47, per Ix)rd Watson; Bridges
V. North London Ry. Co., L. R. 7 Eng. & Ir. App. 213, 232.

646 Waterman v. Chicago & A. R. Co., 82 Wis. 613, 52 N. W. 247; Washing-
ton & G. R. Co. V. Tobriner, 147 U. S. 571, 13 Sup. Ct. 557.

B47 Horn's Adm'x v. Baltimore & O. R. Co., 4 C. C. A. 346, 54 Fed. 301, 6
U. S. App. 381. Running a train at a high rate of speed in a city and pop-
ulous district, or failure to keep a lookout at such point, renders the com-
pany liable, though the injured person was guilty of contributory negligence,
and the trainmen were without fault after they discovered his danger. Nave
V. Alabama G. S. R. Co.. 96 Ala. 2(U, 11 South. 391. But in Parker v. Penn-
sylvania Co., 1.S4 Ind. 673. 34 N. E. 50i, it was held that a similar state of
facts does not constitute such willfulness as renders the company liable
notwithstanding contributory negligence.

B4 8 Smith V. Chicago, M. & St. P. Ry. Co. (S. D.) .55 N. W. 717; McMur-
try V. Louisville, N. O. & T. R. Co., 67 Miss. 601, 7 South. 401.

S49 Terre Haute St Ry. Co. v. Tappenbeck, 9 Ind. App. 422, 36 N. E. 915. Et
vide New York, C. & St. L. R. Co. v. Mushrush (Ind. App.) 37 N. E. 954; Ev-

B50 See note 550 on following page.

Oh 12] ESSENTIAL ELEMENTS. 943

267. Negligence is a conclusion, to be drawn from facts
proved, and not a matter to be proved, ordinarily —

(a) By expert and opinion evidence ;*^^ or

(b) By evidence as to custom.

Expert and Opinion Evidence.

Negligence, as has been seen, is an inference drawn by the jury
from the facts in evidence. It is not, ordinarily, the subject of di-
rect proof.**^ Circumstantial evidence is suflftcient'*' The prem-

ansvlUe & T. H. R. Co. v. Krapf (Ind. Sup.) 36 N. E. 901; Richmond Gas Co.
V. Baker (Ind. Sup.) 39 N. E. 552; Lake Erie & W. R. Co, v. Griffin, 8 Ind.
App. 47, 35 N. E. 396; Gregoi-y v. Wood worth (Iowa) 61 N. W. 962 (under
statute as to damages caused by animals); Board of Com'rs v. Creviston,
133 Ind. 39, 32 N. E. 735; Chicago & I. Coal Ry. Co, v. McDaniels. 134 Ind.
166, 32 N. B. 728; Di Marcho v. Builders' Iron PoundiT (R. I.) 27 Atl. 328;
State V. Baltimore & L. R. Co., 77 Ind. 489. 26 Atl. 865; Walker v. Chester
Co., 40 S. C. 342, 18 S. E. 936 (under statute). A reply is necessary to an
answer alleging contributory negligence, although the complaint denies
it. Louisville & N. R. Co. v. Copas, 95 Ky. 460, 26 S. W. 179.

B50 The absence of contributory negligence need not be directly alleged.
The allegation Is involved substantially in the averment that defendant's
negligence occasioned the injury. In an action for negligence the burden
is on the plaintiff to Establish that he did not cause or contribute to the in-
jurj'. Lee v. Troy Citizens* Gas Light Co., 98 N. Y. 115; Pittsburgh, C. & St.
L. Ry. Co. V. Bennett, 9 Ind. App. 02, 35 N. E. 1033. But see Illinois Cent.
R. Co. V. Nowickl, 148 111. 29, 35 N. E. 358; Ryan v. Town of Bristol, 63 Conn.
26, 27 Atl. 309; Lauster v. diicago, M. & St. P. Ry. Co., 43 111. App. 534;
Clements v. Louisiana Electric Light Co., 44 La. Ann. 092, 11 South. 51 (cf.
Ryan v. Louisville, N. O. & T. Ry. Co., 44 La. Ann, 806, 11 South. 30);
Owens V. Railroad Co., 88 N. C. 506; Keller v. Gaskill, 9 Ind. App. 670, 36
N. E. 303; Buttons v. Hudson River R. Co., 18 N. Y. 252 (cf. Tolman v. Syra-
cuse, B. & N. Y. R. Co., 98 N. Y, 198). And see Dobbins v. Brown, 119 N.
Y. 188, 23 N. E. 537; Reynolds v. New York Cent. & H. R. R. Co., 58 N. Y.
248; Cordell v. New York Cent. & 11. R. R. Co., 75 N. Y. 330; Bond v.
Smith, 113 N. Y. 378, 21 N. E. 128; Stone v. Dry-Dock, E. B. & B. Ry. (3o.,
115 N. Y. Ill, 21 N. E. 712; The Frank and Willie, 45 Fed. 494.

8B1 Black, Prac. & PI. Ace. Cas. pp. 46-52.

0 52 Callahan v. Warne, 40 Mo. 132-137; post, p. 952. Et vide Illinois Cent.
Ry. V. Cragin, 71 III. 177; Garrett v. Chicago & N. W. R. Co., 36 Iowa, 121;
Griffin v. Overman Wheel Co., 9 C. C. A. 542, 61 Fed. 568; Dobbins v. Brown,
119 N. Y. 188, 195, 23 N. E. 537.

558 Waycross Luml>er Co. v. Guy, 89 Ga. 148, 15 S. E. 22; Rosenfield v.
Arrol, 44 Minn. 305, 46 N. W. 768.

944 NEGLIGENCE. [Ch. 12

ises from which it follows may be shown by the direct testimony,
but the wrong itself is a conclusion, to be drawn, not proved.**"^*
Therefore evidence should be confined to showing facts and cir-
cumstances, but not conclusions.**'** Witnesses who are not experts
are confined in their testimony to statements of facts. Thev are
not allowed to give opinions as to matters requiring skill or knowl-
edge, because they are not experts; ^^^ and as to other classes of
matters, because the inference from the fact is to be drawm, not by
them, but by the jury. Therefore, for example, it is not competent
for a witness to state that he used all the means he had to avoid
the accident. He should state what means were at hand.'*'*^ But

554 See Wilson v. Reedy, 33 Minn. 503. 24 N. W. 101; T.ester v. Town of
Pittsford, 7 Vt. 158; Pennsylvania Co. v. Stoelke, 104 III. 201.

5B5 Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469; Tester v. Town of
Pittsford, 7 Vt. 158; Freeberg v. St. Paul Plow Works, 48 Minn. 99, 50 N.
W. 102C; Simmons v. St. Paul & C. Ry. Co., 18 Minn. 184-194 (Gil. 168);
Hinds V. Keith, 6 C. C. A. 231. 57 Fed. 10; Madden v. Missouri Pac. R. Co..
50 Mo. App. 666; Alton L. & C. Co. v. Calvey, 47 111. App. 343; Healy v. Vi-
salla & T. R. Co., 101 Cal. 585, 36 Pac. 125; Baltimore & O. R. Co. v. Rambo.
S C. C. A. 6, 59 Fed. 75; Johnson v. Oregon S. L. & U. N. Ry. Co., 23 Or. 94,
31 Pac. 28:3; Kendrick v. Central RaUroad & Banking Co., 89 Ga, 782, 15 S.
B. 685; Dowdy v. Georgia R. Co., 88 Ga. 726, 16 S. E. 62; Brunker v. Cum-
mins. 133 Ind. 443, 32 N. E. 732. It is beyond the scope of this book to con-
sider when expert evidence is admissible and when if is not. See 1 Thomp.
Neg. 513; Shafter v. Evans, 53 Cal. 32; White v. Ballon, 8 Allen (Mass.) 408;
Wood V. Railway Co., 51 Wis. 196, 8 N. W. 214; Grand Rapids & I. R. Co.
v. Huntley, 38 Mich. 537.

556 Peteler Portable Ry. Manufg Co. t. Northwestern Adamant Manuf*g
Co. (Minn.) 61 N. W. 1024 (stone mason not competent to give opinion in
evidence as to cause of collapse of building). Cf. Oulllette v. Overman
Wheel Co., 162 Mass. 305, 38 N. E. 511 (as to oscillation of shaft), and Wash-
ington, C. & A. Turnpike Case (Md.) 30 Atl. 571 (defective bridge).

657 Hart V. Hudson River Bridge Co., 84 N, Y. 56; 2 Thomp. Neg. p. 799.
§ 14, note 2; Pennsylvania Co. v. Stoelke (1882) 104 IH, 201; Coates v. Bur-
llngton, C. R. & N. Ry. Co. (1883) 62 Iowa, 486, 17 N. W. 760; Michigan Cent.
R. Co. V. Gilbert (1881) 46 Mich. 176, 9 N. W. 243; Bayley v. Eastern R. Co.
(1878) 125 Mass. 62; Lund v. Inhabitants of Tyngsborough (1851) 9 Cush.
(Mass.) 36; l\inner's Ex'r v. Railroad Co. (1877) 60 Ala. 621; North Penn-
sylvania R. Co. V. Kirk (1879) 90 Pa. St. 15; Town of Albion v. Hetrick (18S3)
90 Ind. 545; Hollenbeok v. City of Marshalltown (1883) 62 Iowa, 21, 17 N.
W. 155; Street R. Co. v. Nolthenius (188:^) 40 Ohio St 376; Wright v. City
of Ft. Howard (1884) 60 Wis. 119, 18 N. W. 750.

Ch. 12] ESSENTIAL ELEMENTS. 945

where expert testimony is properly admitted,**^* it is often a matter
of great nicety and uncertainty to determine how .far an expert may
express his opinion without testifying to this inference which the
jury should draw. At the one extreme, if he gives his opinion di-
i-ectly, that the conduct in issue was or was not negligence, he
clearly usurps the functions of the jury; ''*• and it would seem that
he does this also indirectly if he testifies that such conduct was or
was not "safe," *'® "proper," °®^ "necessary,*' ^^^ or the like, or that

ft»8 Xeubauer v. Northern Pac. R, Co. (Miun.) 61 X. W. 912 (large ice tongs).

55»Hankln8 v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867; Ix)iii8vUle, K. &
St L. C. R. Co. V. Beriy, 9 Ind. App. 63, 35 N. E. .56.*), and 36 N. E. (HiJ
(careless); Print v. Patten, 01 Ga, 422, 18 S. E. 311 (careful as he shouM have
been); Mantel v. Chicago, M. & St. P. R. Co., 33 Minn. 62, 21 N. W. 8."»:;;
Butler V. Railroad Co., 87 Iowa, 206, 54 N. W. 208 (skill of engineer for jury).

060 Pi-endible v. Connecticut River Manuf'g Co., 160 Mush. 131, 35 N. E.
675 (whether a staging can safely carry a given load); Harley v. Buffalo
Car Manufg Co., 142 X. Y. 31. 36 X. E. 813 (safety and titness of fastenere
in a belt); Godsen v. Taylor, 41 Minn. 207, 42 X. W. 873; Flanagan v. Rail-
road Co., 83 Hun, 522, 32 X. Y. Supp. 84 (operation of railroad gates); Atchi-
son, T. & S. F. R. Co. V. Myers, 11 (J. O. A. 439, 63 Fed. 7D3 (not admissible
to prove particular mode of coupling cars to be specially dangerous). But
an expert witness may testify as to whether a car fumisheil for the ship-
ment of stock was reasonably safe for such purpose. Betts v. Chicago, R.
I. & P. Ry. Co. (Iowa) 60 X. W. 623. So, evi<leme by those famUiar with
oil used for illuminating purposes is competent to show that it was not dan-
gerous for one, in the use of ordinary care, to enter with a lighted lamp a car
containing that substance. Standard Oil Co. v. Tlerney (Ky.) 27 S. W. 08;^.
And see McGonigle v. Kane (Colo. Sup.) 38 Pac. 367 (elevator).

o«i Houston v. Brush, 66 Vt. 331, 2J) Atl. 380; Armstrong v. Railway Co.,
45 Minn. 85, 47 X. W. 459 (whether a stable was suitable and proper). But
see Hay ward v. Knapp, 23 Minn. 430. It is error to admit the opinion of
an expert as to whether it was a defect in a freight car that there was noth-
ing on the end of it for a brakeinan, after uncoupling for a flying switch, to
lay hold of. Dooner v. Delaware & H. Canal Co., 164 Pa. St. 17, 30 Atl. 269.
But a medical expert has been allowed to tc?stify wliether given treatment was
proper. Wright v. Hardy. 22 Wis. ;i'{4. A witness may be asked what
course a cairier should properly pm-sue with i-espect to live stock suffering
from heat in transit, Lindsley v. Railw^ay Co., 36 Minn. 539, 33 X. W. 7; or

B«2 Rectal vera International & G. X. Ry. Co. v. Armstrong, 4 Tex. Civ. App.
146, 23 S. W. 236 (position of shipper of live stock on drawhead of car). Bat
see Terre Haute & L. R. Co. v. Walsh (Ind. App.) 38 X. E. 5:U (what will b.^
uec(*ssary to drain meadow). And see I'ennsylvanla Co. v. Conlan, 101 111. 9:>.

LAW OF TORTS— 60

946 NEGLIGENCE. [Ch. 12

certain things should or should not have been done.***' So to pass
on the merits of the case is not commonly justifiable, and certainly
not where the drawing of such inference requires no particular skill
or knowledge; but the jury, in the light of the evidence and by the
exercise of sound judgment, can infer as well as the witness.'**
On the other hand, if the expert is confined to the mere statement
of the facts, and the principles of his science, and the methods, instru-
mentalities, and effects of that science as applied, mere comment
on such testimony and upon the other facts by the counsel is often
inadequate to present the case to the jury properly, if, indeed, in-
telligibly.'** But this is the safe, and perhaps the only safe, course

what is a proper position, e. g. of a brakeman, under the circumstances,
Czezewzka v. Railway Co., 121 Mo. 201, 25 S. W. 911; Cincinnati & Z. R. Co.
V. Smith, 22 Ohio St. 227; Schlaff v. Railroad Co., 100 Ala. 377, 14 South. 105.
So, expert evidence may show position of brakeman is at air brake to make a
flying switch. Reifsnyder v. Railway Co. (Iowa) 57 N. W. 692. And experts
may testify to imperfections of contrivances by which an electric lamp was
suspended. Excelsior Electric Co. v. Sweet (N. J. Sup.) 30 AtL 553.

ae3 Hoffman v. Metropolitan St. Ry. Co., 51 Mo. App. 273; Cleveland, C, C.
^ St. L. Ry. Co. V. De Bolt, 10 Ind. App. 174, 37 N. E. 737. But see Galves-
ton, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 100, 25 S. W. 486; Ala-
bama G. S. R. Co. v. Linn (Ala.) 15 South. 508. Cf. Frost v. RaUroad Co., 96
Mich. 470, 56 N. W. 19; Bennett v. Morris (Cal.) 37 Pac. 929 (whether giv«i
eonduct is practicable in hydrauUc mining); Watson v. Minneapolis St Ry.
C^., 53 Minn. 551, 55 N. W. 742 (within what distance sti'ec^t car going at given
rate of speed can be stopped). Tholen v. Brooklyn City R. Co., 10 Misc. Rep.
283, 30 N. Y. Supp. 1081. But see, as to same matter, Adams v. Chicago,
M. & St P. Ry. Co. (Iowa) 61 N. W. 1050; St I^uis & S. F. Ry. Co. v. Farr,
•♦ C. C. A. 211, 56 Fed. 994 (expert testimony received to show whether or
not a given defect could have been discovered on inspection).

664 Thus, the Jury only can determine whether a walk was in condition
♦if reasonable repair and reasonably safe for public travel. Glrard v. City of
Kalamazoo, 92 Mich. 610, 52 N. W. 1021. And see Cross v. Lake Shore &
M. S. Ry. Co., 69 Mich. 363, 37 N. W. 361, distinguished in Meyer v. Brooklyn
City R. Co., 10 Misc. Rep. 11, 30 X. Y. Supp. 534; Overby v, Chesapeake &
O. Ry. Co., 37 W. Va. 534, 16 S. E. 813; Nutt v. Southern Pac. R. Co., 25 Or.
291, 35 Pac. 653; Clifford v. Richardson, 18 Vt 020, 626; Fraser v. Tupper,
29 Vt 409; Brj-ant v. Central Vt R. Co., 56 Vt 710; Carpenter v. Corinth, 58
Vt 214, 2 Aa 170; Bemis v. Central Vt R. Co., 58 Vt 637, 3 Atl. 531; Moore
V. Havlland, 61 Vt 58, 17 Atl. 725.

so 3 The conclusions of such a witness from facts which he observed are not
incompetent where they are inferences from many minor details, which could

Ch. 12] ESSENTIAL ELEMENTS. 947

to pursue, notwithstanding a manifest tendency to relax the rigid
operation of the rule. A greater liberality is extended as to opin-
ion evidence applied to cases where there is a personal knowledge
of facts on which the opinion is based. *^**

Evidence as to Custom.

Testimony of experts as to what witness would or would not
do under the same or similar circumstances is objectionable, be-
cause the standard of diligence is absolute, and the question is,
not what care a particular individual would exercise, but what is
treasonable care under the circumstances.*"^ This reasoning, how-
ever, does not exclude proof of general usage and custom and
good practice among prudent and competent men in the same

not be adequately presented to the Jury except by the statement of such infer-
ence or opinion. Baltimore & O. R. Co. v. Rambo, 8 G. C. A. C, 59 Fed. 75.
For this reason, a physician may testify as to the cause of personal injury.
Edwards v. Common Council of Three Rivers, 06 Mich. G25, 55 N. W. 1003;
Vosburg V. Putney, 86 Wis. 278, 56 N. W. 480; Manufacturera' Accident In-
demnity Co. V. Dorgan, 7 C. C. A. 581, 58 Fed. 945. So, whether or not plain-
tiff was apparently well. Robinson v. Exempt Fire Co. of San Francisco, 103
CaL 1, 36 Pac. 955. In an action for injiu*ies, the attending physician may tes-
tify as to the probable result of the injuries upon plaintifT's health and life.
Barr v. City of Kansas, 121 Mo. 22, 25 S. W. 562. Probable effect, Sabine &
E. T. R. Co. V. Ewing (Tex. Civ. App.) 20 S. W. 638; probable or possible and
hnmediate effect. Bliss v. New York Cent. & U. R. R. Co., 160 Mass. 447, 36 N. E.
65; permanency, Louis viUe, N., A. & C. Ry. Co. v. Holsapple (Ind. App.) 88
N. E. 1107. And see "Cause," ante, p. 936, note 518.

sea Thus, a witness with personal knowledge may testify as to control of a
driver of a horse, and that he seemed to drive carefully, Wilson v. New York,
N. H. & H. R. Co. (R. I.) 29 Atl. 300; or that he was driving at a safe rate
of speed, Houston City St Ry. Co. v. Richart (Tex. Civ. App.) 27 S. W. 918;
whether a driver could have seen cars in time to avoid accident, Alabama
6. S. R. Co. V. Linn (Ala.) 15 South. 508. So as to movement in speed of
trains. Sears v. Seattle Consol. St. R. Co., 6 Wash. 227, 33 Pac. 3S9; Camp-
bell V. Warner (Tex. Civ. App.) 24 S. W. 703; San Antonio & A. P. R. Co. v.
Parr (Tex. Civ. App.) 26 S. W. 861; Ryan v. Town of Bristol, 63 Conn. 26, 27
Atl. 309 (condition of highway); Noble v. St. Joseph & B. H. St. Ry. Co., 93
Mich. 249, 57 N. W. 126. And, generaUy, see Gulf, C. & S. F. R. Co. v. Haskell
4 Tex. Civ. App. 550. 23 S. W. 546; Louisville. N. A. & C. Ry. Co. v. Miller
(Ind. Sup.) 37 N. E. ^43; Ward v. Charleston City Ry. Co. (1883) 19 S. C. 521,
Yahn v. City of Ottumwa a883) 60 Iowa, 429, 15 N. W. 257.

••T But see Miller v. Illinois Cent. Ry. Co. (Iowa) 57 N. W. 418.

948 NEGLIGENCE. [Ch. J 2

class,'^'^* although giuch standard of care is not conclusive.**'* Such
general usage may itself be negligent. Under such circumstances^
failure to conform thereto is not evidence of negligence."^® To give
such usage, custom, or practice a final effect would substitute the
care commonly exercised in fact for the care required by court and
jury.**^^ Moreover, besides thus making the standard of care com-
mercial, as distinguished from legal, this would tend to limit the
progress which may reasonably be made in requiring increased care
as means of avoiding harm. No custom justifies conduct negligent
in law.*^*

608 ExiMjrts may testify as to practice of physicaus as to consultation, but
not as to measure of defendant's responsibility to patient Mertz v. Det-
weller, 8 Watts & S. (Pa.) 376; Jeffrey v. Railway Co., 56 Iowa, 546, 9 N.
W. 884 (uncoupling cars in motion; unusual); Houston & T. C. R. Co. v.
Cowser, 57 Tex. 293 (ordinary mode of switching cars); Aldricb v. Monroe.
60 N. H. 118 (usage as to loaded teams on steep highway); Coates v. Bur-
lington, C. R. & N. Ry. Co., 62 Iowa, 486, 17 N. W. 760 (blocking frogs); Hart
V. Hudson R. Bridge Co., 84 N. Y. 56 (gates in drawbridge); Kolsti v. Rail-
way Co.. 32 Minn. 133, 19 N. W. 655 (fastening turntable). Cf. Gulf, C. &
S. F. R. Co, V. Evansich. 61 Tex. 3; Fitts v. Cream (Mty R. Co., 59 Wis. 32'».
18 N. W. 186. And, generally, see North Chicago Rolliag-Mill Co. v. John-
son, 114 111. 57, 29 N. E. 186; Biu-ns v. Seunett, 99 Cal. 363, 33 Pac 916;
Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 South. 88. But see
East Tennessee, V. & G. R. Co, v. Kane, 92 Ga. 187, 18 S. E. 18; Holmes v.
South Pac. Coast R. Co., 97 Cal. 161, 31 Pac. 834; Doyle v. St. Paul, M. &
M. Ry. Co., 42 Minn. 79, 43 N. W. 787; O'Malley v. St. Paul, M. & M. Ry.
Co., 43 Minn. 289, 45 N. W. 440.

6«» Congdon v. Howe Scale Co., 66 Vt 255, 29 Atl. 253; Flanders v. Chicago,,
St. P., M. & O. Ry. Co., 51 Minn. 193, 53 N. W. 544. An instruction that if
the employes in charge of defendant's train, when they injured plaintiff, were
endearoring to make what is known as a "flylngi" switch, and that such con-
duct was dangerous and not permitted by railway companies exercising caro
in managing their trains, defendant was liable, is improper, as It bases the
question of negligence on the conduct of other railway companies. Gulf, C.
& S. F. Ry. Co. V. Smith, 87 Tex. 348, 28 S. W. .520.

070 Austin V. Chicago, R. I. & P. Ry. Co. (Iowa) 61 N. \V. 849 (bulldlng^
switches).

»7i Hill V. Portland & R. R. Co., 55 Me. 438.

S72 Central R. Co. v. De Bray, 71 Ga. 406; Cleveland v. New Jersey Steam-
boat Co., 5 Ilun, 523; Mason v. Missouri Pac. R. Co., 27 Kan. 83; Michigan
Ont. R. Co. V. Coleman, 28 Mich. 440.

Ch. 12] ESSENTIAL ELEMENTS. ^49

Evidence Must be Rdevnai,

It is beyond the scope of this book to discuss the rules of evi-
dence, with regard to relevancy, as applied to negligence, beyond
a brief reference to a f(»w considerations having a general bearing.

Relevancy of evidence to prove negligence is determined, inter
alia, by the connection of the fact sought to be proved as the cause
of damage complained of.*^^^ Testimony admitted is generally lim-
ited to the period and the circumstances immediately involved.
Therefore, one is not allowed by the prevailing,'^* but not uni-

BT3 LouisviUe & N. R. Co. v. Pearson. 97 Ala. 211, 12 South. 176; Reich v.
Union Ry. Co., 78 Hun, 417, 28 N. Y. «upp. 1105; WiUiams v. Gihuan, 71
Me. 21 (where evidence as to cause of death of a colt, in gelding, was held
admissible). Evidence as to Intent is not admissible. Hanklns v. Watklns,
77 Hun, 360, 28 N. Y. Supp. 867. A short note on the question of evidence
admissible to show injuries received In accident on a railroad train. Cooper
>. St. Paul Ry. Co., 58 Am. & Eng. Ry. Cas. 602 (Minn.) 56 N. W. 42.

B74 Opinion of Mitchell, J., in Morse v. Minneapolis & St. L. Ry. Co., 30
Minn. 465, 16 N. W. 358, approved by Gray, J., in Columbia & P. S. R. Co. v.
Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591; Aldrich v. Concord & M. R. R.
(N. H.) 29 Atl. 408, overruling Martin v. Towle, 59 N\ II. 31; Clapper v. Town
of Waterford, 131 N. Y. :«2, 30 N. E. 240; Xalley » . Hartford Carpet Co., 51
Conn. 524; McGuerty v. Hale, 161 Mass. 51, 36 N. K. ($82; Terre Haute Ry.
Co. V. Clem, 123 Ind. 15, 23 N. E. 965; Barber Asphalt Pa v. Co. v. Odasz,
8 C. C. A. 471, 60 Fed. 71; Ely v. Railway Co., 77 Mo. 34; Cramer v. City
of Burlington, 45 Iowa, 627; Anderson v. Chicago, St. P., M. & O. Ry. Co.,
87 Wis. 195, 58 N. W. 79; Missouri I»ac. Ry. Co. v. Hennessey, 75 Tex. 155,
12 S. W. 608; Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 4<)8, 16
N. W. 358; Holt v. Spokane & P. Ry. Co. (Idaho) 35 Pac. 39; Corcoran v. Vil-
lage of PeeksklU, 108 N. Y. 151, 15 N. E. :i(K); Dougan v. Champlaiii Transp.
Co., 56 N. Y. 1; Day v. II. C. Akeley Lumber Co., 54 Minn. 522, 56 N. W.
243; Lombar v. Village of East Tawas, 86 Mich. 14, 48 N. W. 947; Hodges
V. Percival, 132 111. 53, 23 N. E, 423, affirmed City of Streator v. Hamilton,
49 111. App. 449; Shinners v. Proprietors of Locks & Canals, 154 Mass. 168,
28 N. E. 10; Hager v. Southern Pac. R. Co., 98 Cal. 309, :W Pac. 119; Atchi-
son, T. & S. F. R. Co. V. I'arker, 5 C. C. A. 220, 55 FchI. 595. This is also the
English rule. Hart v. Lancashire & Y. Ity. Co., 21 I^w^ T. N. S. 2(;i. But
in an action for the death of a child run over at a street crossing, evidence
tliat defendant, soiin after the accident, erected gates at the crossing at which
it occurred, is proper, where the jury is permitted to view the premises and
see the gates. Lederman v. Pennsylvania R. Co., 165 Pa. St. 118, 30 Atl.
725.

950 KEGI.IC5EXCE. [Ch- 12

vergal,'^' opinion, to show that, subsequently to the damage, pre-
cautions were taken and alterations made to avoid recurrence of
similar harm. Nor may he show the occurrence of similar acci-
dents.*'* However, the condition of the place when the alleged in-
jury was inflicted, a reasonable time before and after the time of
its occurrence,'^' and the immediately subsequent operation of the
instrumentality of harm may be shown.*^'" Indeed, the cases, un-
der appropriate circumstances, have allowed the admission of evi-
dence to show defects other than strictly the ones producing dam-
age.*'*

875 Alberts v. Village of Vernon, 96 Mich. 549, 55 N. W. 1022; Woods v.
Missouri, K. & T. R. Co., 51 Mo. App. 500 (not to show negligence, but
duty). And see WUlltts v. Chicago, B. & K. C. Ry. Co., 88 Iowa, 281, 55 N.
W. 313; Stone v. Town of Poland, 81 Hun, 132, 30 N. Y. Supp. 748.

»T0 E. 0. another elevator at another time. Wise v. Ackerman, 76 Md. 375,
25 Atl. 424; or negligence of same servant at other times, Burke v. New
York Cent & H. R. R. Co., 66 Hun, 627, 20 N. Y. Supp. 808 (and see Ken-
nedy V. Spring, 160 Mass. 203, 35 N. E. 779); City CouncU of Augusta v.
Lombard, 93 Ga. 284, 20 S. E. 312; or that other horses caught feet in same
crossing, North Chicago St. R. Co. v. Hudson, 44 111. App. 60; or that same
overhead bridge struck other brakemen, Schlaflf v. Lrouisville & N. R. Co.,
100 Ala. 377, 14 South. 105; Dorman v. Ames, 12 Minn. 451 (Gil. 347). But
see Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 16 N. W. 358; Bemis
V. Temple, l(i2 Mass. 342, 38 N. E. 970; Wooley v. Grand St. & N. R. Co.,
83 N. Y. 121; Higley v. Gilmer, 3 Mont. 90; Field v. Davis, 27 Kan. 400;
Smith v. City of Des Moines, 84 Iowa, 685, 51 N. W. 77; Kent v. Town of
Lincoln, 32 Vt. 591.

677 Shepard v. Creamer, 160 Mass. 496, 36 N. E. 475; Phelps v. Winona &
St. P. R. Co., 37 Minn. 485, 35 N. W. 273, and cases cited at page 487, 37
Minn., and page 273, 35 N. W.; Swadley v. Missouri Pac. Ry. Co., 118 Mo.
268, 24 S. W. 140; Jessup v. Osceola Co. (Iowa) 60 N. W. 485; Chicago, P.
& St. L. R. Co. V. Lewis, 145 111. 67, 33 N. H 960 (but see Gerdes v. Christo-
pher & S. A. Iron & Foundry Co. [Mo. Sup.] 25 S. W. 557); City of Chicago v.
Powers, 42 111. 169. Especially if it be shown that the place remained the
same. Sullivan v. City of Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105. Cf.
Iloyt V. City of Des Moines, 76 Iowa, 430, 41 N. W. 63. And see Munger v.
(Mty of Waterioo, 83 Iowa, 559, 49 N. W. 1028. But see House v. Metcalf, 27
Conn. 631; Hill v. Portland & R. R. Co., 55 Me. 438; Piggott v. Eastern
Counties Ry. Co., 3 C. B. 229.

8T8 E. g. a defective brake. Mixter v. Imperial Coal Co., 152 Pa. St. 395,
25 Atl. 587.

870 E. g. defective condition of track several hundred feet on each side of

Ch. 12] ESSENTIAL ELEMENTS. 951

The character of the defendant's conduct in a case at issue haa
immediately to do with the damage caused; but his character for
care or caution,'*® op his general conduct,''^^ has no logical connec-
tion with the wrong. Such, evidence is, therefore, excluded.

268. Negligence is ordinarily a question of fact, not of
law, to be determined by the jury, not by the court.
And this is true 'whether the uncertcdnty arises
from a conflict in the testimony, or because, the
facts being undisputed, fair-minded men may hon-
estly draw diflierent conclusions from them.^ But
there are circumstances under 'which the court may
pass upon the sufficiency or insufficiency of the evi-
dence of negligence presented as a matter of law.

In determining when the courts will take a case from the jury
and decide as a matter of law either that there is or is not negli-
gence proved, the cases are very much at sea. It was early sug-
gested as a test that, if there be a scintilla of evidence showing neg-
ligence, this would be sufficient to send the case to the jury.*^®^

At the other extreme, it has been insisted that cases of negli-
gence form no exception to the rule that it is the judge's duty to
nonsuit wherever a verdict for the plaintiff would be clearly against
the weight of evidence.*^**^ A mere scintilla, therefore, is not

place of accident. Ohio Val. R. Co. v. Watson's Adm*r, 93 Ky. 654, 21 S. W.
244. Defective condition of -brakes on other cars. Bailey v. Rome, W.
& O. R. Co., 139 N. Y. 302, 34 N. B. 918.

080 Hays v. Millar, 77 Pa. St. 238; Tenney v. Tuttle, 1 Allen (Mass.) 185^
Dunham v. RacklUf, 71 Me. 345; Hill v. Snyder, 44 Mich. 318, 6 N. W. 674.

581 Bannon v. Baltimore & O. R. Co., 24 Md. 108, and see Darting v. West-
moreland, 52 N. H. 401.

582 Richmond & D. R. Co. v. Powers, 149 U. S. 43, 13 S. Ct. 748.

588 Pennsylvania R. Co. v. Horst, 110 Pa. St. 226, 1 Atl. 217; Robinson v.
Railroad Co.. 2 Lea, 594; Dick v. Railroad Co., 38 Ohio St. 389; Mercier v.
Mercier, 43 Ga. 323. And see, generally, Imj^rovement Co. v. Munson, 14 Wall.
(U. S.) 442-^48; Smith v. Sioux City & P. R. Co., 15 Xeb. 583, 19 N. W. 638;
Hathaway v. East Tennessee, etc., R. Co., 29 Fed. 489; Parks v. Rose, 11 How.
(U. S.) 362; Pleasants v. Fant, 22 Wall. (U. S.) 116-121.

585 wUd's Adm'r v. Hudson River R. Co., 24 N. Y. 430.

U')2 NEGLIGKXCE. [Ch. 12

cuougb.'**® Thus, against positive, affirmative testimony of cred-
itable witnesses tbat a customary signal was given, mere **I did not
liear'' of one or more witnesses will not autborize submission to a

j^|,.y 687

Weight of Evidence and Failure of Proof.

But courts incline to generally accept, although in varying words,
tlie somewhat vague principle that the weight of evidence is for the
jury, and failure of proof is for the court. This would appear to
hii the gist of the many different phases assumed by the cases, and
of the equally numerous formuhe of the court.°®* It may clarify the
subject to consider* so^ie conspicuous rulings.

A very clear statement of the general theory on which the ques-
tion is now decided will be found in Callahan v. Wame: '**• "Negli-
gence is a thing which, by its very nature, pertains to human con-
duct and the action of the mind and will. It is something invisi-
ble, intangible, and, for the most part, incapable of direct proof, like
sensible facts or physical events. It is, in general, a matter of in-
fei*ence from other facts and circumstances which admit of direct
proof, and which may raise a presumption of the truth of the main
fa(it to be proved. These facts and circumstances must be such as
would warrant a jury in inferring from them the fact of negligence
by reasoning in the ordinary way, according to the natural and
pro[>er relation of things, and consistently with the common sense
and experience of mankind. A jury is not to be left or permitted
to act or reason in any other way on such facts. Where it is plain
that the jury could not find a verdict on the evidence offered with-

fiBo Dwight V. Goi'iimnin lAfv Ins. Co., 103 X. Y. 341, 8 N. E. 054.

587 Ciilhane v. X<»w York (Vnt. & H. R. U Co., (50 N. Y. 133.

08 8 Commissioners of Marlon Co. v. Clark, 94 U. S. 278-284; Cooper v. Wal-
dron, 50 Me. 80; Morton 7. Frankfort, 55 Me. 4(5; Mason v. Lewis, 1 G.
Greene (Iowa) 404; Bailey v. Kimball. 2(j N. H. .'{51; Colt v. Sixth Ave. R.
Co., 49 N. Y. 071. In .Teansch v. Lewis. 48 N. W. 128, this court stated the
rule applicable to such eases as follows: ''Where, in a case tried by a jur>',
the evidence is conflicting, this court wiU not weigh the evidence, or go fur-
ther than determine therefrom whether or not the party has given sufficient
legal evidence to sustain his verdict, without regard to the evidence given by
the other party, except so far as such evidence tends to sustain the plain-
tiff's case." Brewing Co. v. Mielenz, 5 Dak. 130, 37 N. W. 728.

6H9 40 Mo. 132, 130, 137.

Ch. 12] ESSENTIAL ELEMENTS. 963

out reasoning irrationally, against all ordinary common sense, and
against all proper notions of justice and right, or against law, or
without being influenced by undue sympathy, prejudice, gross mis-
judgment, or mistaken impression of law and facts of the case, the
court will declare as a matter of law that there is no competent evi-
dence to be submitted to the jury." '"®

In Gardner v. Michigan Cent. R. Co.*^®^ the rule was laid down that
a question as to the existence of negligence should not be withdrawn
from the jury unless the conclusion follows, as matter of law, that
no recovery can be had upon any view which can be properly taken
of the facts which the evidence tends to establish. And more defi-
nitely, it was said in Grand Trunk Ry. Co. v. Ives ^^^ that "there is no
flxed standard in the law by which a court is enabled to arbitrarily
sav in everv case what conduct shall be considered reasonable and
prudent, and what shall constitute ordinary care, under all the cir-
cumstances. The tei-ms 'ordinary care,' ^reasonable prudence,' and
such like terms as are applied to the conduct and affairs of. men,
have a relative significance, and cannot be arbitrarily defined. What
may be deemed ordinary Ciire in one case may, under different sur-
roundings and circumstances, be gross negligence. The policy of
the law has relegated the determination of such questions to the jury,

B»o 1 GreenL Ev. §§ 44-48; Smith v. Hannibal & St. J. R. CJo., 37 Mo. 287.

s»i I.jO U. S. 349. 14 S. Ct. 140, per Fuller, C. J.

B92 144 u. S. 408^17; 12 S. Ct. 079; Northern Pac. R. Co. v. Everett, 152
U. S. 107, 14 Sup. Ct 474 (where a switchman, in the line (ft his rej?ular duty,
undertook to couple cars, one of which was loaded in an unusual and dan-
l!;erous w^ay with bridge timbers); Richmond & D. R. Co. v. Powers, 149 TJ.
S. 43, 13 Sup. Ct. 748 (where a man was killed while crossing a track). And,
generally, see Texas & P. R. Co. v. Cox, 14,5 U. S. 593, 12 Sup. Ct. 905, and
<'ases at page G06, 145 U. S., and page 905, 12 Sup. Ct. Sioux City & P. R, Co.
V. Stout, 17 Wall. (OT; Washington & G. R. Co. v. Harmon's Adm'r, 147 T.
S. 571, 13 Sup. Ct. 557; Washington & G. R. Co. v. McDade, 135 U. S. 554,
10 Sup. Ct. 1044; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 4G9, 11
Sup. Ct. 569; Tucker v. Baltimore & O. R. Co., 8 C. C. A. 41G, 59 Fed. 908:
Missouri Pac. R. Co. v. Moseley, t> C. C. A. 041, 57 Fed. 921; Boyer v. St.
Paul City Ry. Co., 54 Minn. 127, 55 N. W. 825; Kansas City, Ft. S. & M. R.
Co. V. Kirksey, 9 C. C. A. 321, 00 Fed. 999; Sullivan v. Xew York, X. U. &
H. R. Co., 154 Mass. 524-527, 28 X. E. 911; Gardner v. Michigan Cent. R. Co.,
150 U. S. 349, 14 Sup. Ct. 140; Illinois Cent. R. Co. v. Foley, 3 C. C. A. 581),
53 Fed. 459; Gulf, C. & S. F. Ry. Co. v. Ellis, 4 C. C. A. 454, 54 Fed. 481.

\

954 NEGLIGENCE. [Ch. 12

under proper instructions of the court It is their province to note
the special circumstances and surroundings of each particular case,
and then to say whether the conduct of the parties in that case was
such as would be expected of reasonable, prudent men, under a sim-
ilar state of affairs. When a given state of facts Is such that, rea-
sonable men may fairly differ upon the question as to whether there
was negligence or not, the determination of the matter is for the
jury. It is only where the facts are such that all reasonable men
must draw the same conclusion from them that the question of neg-
ligence is ever considered as one of law."

In Crane Elevator Co. v. Lippert,^"^ a boy, while walking slowly
through an unlighted hall, in the dark, stumbled over an obstruc-
tion, and was injured. He could not see the obstruction, but he
knew it was there, and he tried to go around it, but miscalculated
the distance. It was held that the question of contributory negli-
gence was for the jury. So, where a brakeman was injured while
coupling cars by stepping into a hole covered with snow and slush,
it was the province of the jury to determine whether the company
had discharged its duty of keeping the track in a reasonably safe
condition, and, if not, whether its neglect was the proximate cause
of the injury, unmixed with any contributory negligence.***

B»8 11 C. C. A. 521, C3 Fed. 942.

BB4 Northern Pac. R. Co. v. Teeter, 11 C. C. A. 332, G3 Fed. 527. Where a
brakeman standing on a box car was Injured by overhead beams of a railroad
bridge, held, that the questions of negligence and contributory negligence were
for the Jury. Northern Pac. R. Co. v. Mortenson, 11 C. C. A. 335, 63 Fed.
530. Brown v. Burlington, C. R. & N. R. Co. (Iowa) GO N. W. 779 (negli-
gence of engineer injuring brakeman engaged in coupling); Baltzer v. Chi-
cago, M. & N. R. Co., 89 Wis. 257, 60 N. W. 716 (coupling from pilot); Bow-
ers V. Connecticut River R. Co., 162 Mass. 312, 38 N. E. 508 (negligence in al-
lowing lateral motion of drawbars); Brouillette v. Connecticut River R. Co.,
162 Mass. 198, 38 N. E. 507 (spare brakeman engaged in electric signal serv-
ice); Louisville, N. A. & C. R. Co. v. Sears (Ind. App.) 38 N. E. 837 (negli-
gence of minor plaintiff); Tholen v. Brooklyn City R. Co. (City Ct. Brook.)
30 N. Y. Supp. 1081; Whalen v. Citizens' Gas Co. (City Ct Brook.) 30
N. Y. Supp. 1077 (negligence of woman 70 years old); Excelsior Electric Co.
V. Sweet (N. J. Sup.) 30 Atl. 553 (fall of electric lamp suspended by imperfect
rope); Kansas City, Ft. S. & M. R. Co. v. Kirksey, 9 C. C. A. 321, 60 Fed.
999 (signals); Ward's Adm'r v. Chesapeake & O. R. Co., 39 W. Va. 46, 19 S.
E. 389 (Id.); Hennessy v. City of Boston, 161 Mass. 502, 37 N. E. 668 (caving

Ch. 12] ESSENTIAL ELEMENTS. 955

This rale has been generally accepted.*^"* In New York, how-
ever, the supreme court has gone so unreasonably far as to hold con-
duct to be contributory negligence as a matter of law, although

In sewer); Stuber v. McEntee, 142 N. Y. 200, 36 N. B. 878 (caving of street
excavation); Cameron v. Union Trunk Line (Wash.) 39 Pac. 128 (walking
on street-car track); Central R. Co. v. Coleman (Md.) 30 Atl. 918; Central
Pass. It. Co. V. Chatterson (Ky.) 29 S. W. 18 (collision of street car with car-
riage); Jaquinta v. Citizens' Traction Co. (Pa. Sup.) 30 Atl. 1131 (Id.);
Thatcher v. Central Traction Co. (Pa. Sup.) 30 Atl. 1048; Denver & B. P.
Rapid-Transit Co. v. Dwyer (Colo. Sup.) 36 Pac. 1106 (riding on platform of
motor with feet on step) ; McGiveni v. Wilson, 160 Mass. 370, 35 N. E. 864 (fail-
ure of stevedores to discover a defect in a guy rope); Birnburg v. Schwab, 55
Minn. 495, 56 N. W. 341 (falling down elevator shaft); Robertson v. Boston
& A. R. Co. 160 Mass. 191, 35 N. E. 775 (negligence of engineer in not leaving
his engine, to avoid danger) ; Texarkana Gas & Electric Light Co. v. Orr, 59
Ark. 215, 27 S. W. 66 (electric wire); Otterback v. City of Philadelphia, 161
Pa. St. Ill, 28 Atl. 991 (asphyxia from escaping gas); American Water-
Works Co. V. Dougherty, 37 Neb. 373, 55 N. W. 1051 (where plaintiff was
drunk); McClcary v. Frantz, 160 Pa, St. 535, 28 Atl. 929 (contributory negli-
gence of hunters); Ryan v. Town of Bristol, 63 Conn. 26, 27 Atl. 309 (defect-
ive highway); Coffin v. Inhabitants of Palmer. 162 Mass. 192, 38 N. E. 509
(defective highway). Compare Casey v. City of Fitchburg, 162 Mass. 321, 38
N. E. 499.

B«8 American Waterworks Co. v. Dougherty, 37 Neb. 373, 55 N. W. 1051.
foUowed in Omaha & R. V. R. Co. v. Morgan, 40 Neb. 604, 59 N. W. 81; Chi-
cago, B. & Q. R. Co. V. Wymore. 40 Neb. 645, 58 N. W. 1120-1125; Bannon
V. Lutz, 158 Pa. St. 166, 27 Atl. 890; Brezee v. Powers, 80 Mich. 182, 45 N.
W. 130; Roux v. Blodgett & Davis Lumber Co., a5 Mich. 519, 48 N. W. 1032;
Swaboda-s Case, 40 Mich. 424; Hagen v. Chicago, D. & C. G. T. J. Ry. Co.,
86 Mich. 615, 49 N. W. 510; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W.
270; Luke v. Wheat Min. Co., 71 Mich. 364. 39 N. W. 11; Chicago, B. & Q.
Ry. Co. V. Oleson, 40 Neb. 889, 59 N. W. 354; American Waterworks Co. v.
Dougherty, 37 Neb. 373, 55 N. W. 1051, followed in Omaha & R. V. R. Co.
V. Brady, 39 Neb. 27, 57 N. W. 707; Ft. Worth & N. O. Ry. Co. v. Wallace,
74 Tex. 581, 12 S. W. 227; Campbell v. Goodwin (Tex. Civ. App.) 20 S. W.
864; Chicago, B. & Q. Ry. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120; Chi-
cago, B. & Q. Ry. Co. V. Wilgus, 40 Neb. 660, 58 N. W. 1125; McCleary v.
Frantz, 160 Pa. St. 535, 28 Atl. 929; Newark Pass. Ry. Co. v. Block, 55 N. J.
Law, 605, 27 Atl. 1067; Emery v. Minneapolis Industrial Exposition, 56 Minn.
460, 57 N. W. 1132; Illinois Cent. R. Co. v. Turner, 71 Miss. 402, 14 South. 450.
And see Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120; Chi-
cago, B. & Q. R. Co. V. Oleson, 40 Neb. 889, 59 N. W. 354; American Water-
works Co. V. Dougherty, 37 Neb. 373, 55 N. W. 1051, followed in Omaha & R.
V. R. Co. V. Brady, 39 Neb. 27, 57 N. W. 767.

956 NEQLTGENCE. [Ch. 12

members of the deciding bench could not reach the conclusion that
there was contributory negligence. '^^^

The English rule is even more favorable to the plaintiff than is
the American rule. Tlie view of a majority of the court in Dublin,
etc., R Co. V. Slattery '^•^ is that whenever there is evidence of
negligence on the part of the defendant, conducing to the accident,
upon which evidence, apart from any consideration of the character
of the plaintiff's conduct, the jury might not unreasonably find a
verdict for the plaintiff, the judge can never nonsuit.^®*

On the other hand, however, where the undisputed evidence is so
(umclusive as to plaintitt'^s contributory negligence that the court
would be compelled to set aside a verdict returned in opposition to
it, the case may be withdrawn from the consideration of the jury,
and a verdict directed for the defendant. Thus, if an experienced
railroad man deliberately steps on a track in front of an approach-
ing train, without looking or taking any precaution for his own
>*afety, as a matter of law he is guilty of such contributory negli-
^^ence as will defeat his recovery.®*® So where a boy, riding on a

r'0« Hunter v. Cooperstown & S. V. R. Co., 126 N. Y. 18, 26 N. E. 958.

507 3 App. Cas. lis."),— per Lord Cairns, page 1167; per liord Selborne, page
1189; per Lord O'Hagan, page 1182; per Lord Gordon, page 1216. But see
Uyder v. WoiubweU, L. R. 4 Excb. 32; DubUn, W. & W. R. Co. v. Slattery,
>.npra, per Lord Blackburn, page 119i). and per Lord Hatlierle.v, page 1168.
And see Davey v. London & S. W. Ry. Co., 12 Q. B. Div. 70; Wakelin v. Rail-
road Co., 12 App. Cas. 41.

59 8 Clerk & L. Torts, 390. Ante. p. 932. note 502.

000 Elliott V. 'Chicago, M. & St. P. Ry. Co., 150 U. S. 245, 14 Sup. ilJt. 85. Et
vide Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469-472, 11 Snp. Ct. 569;
Anderson Co. Com'rs v. Beal, 113 U. S. 227, 5 Sup. Ct. 433; Rehm v. Pennsyl-
vania R. Co., 164 Pa. St. 91, 30 Atl. 356; Clmffee v. Old Colony R. Co., 17 R. L
658, 24 Atl. 141; Louisville & X. R. Co. v. Markee (Ala.) 15 South. 511; Carroll
V. Minnesota Val. R. Co., 13 Minn. 30 ((lil. 18); Griggs v. Fleckenstein, 14 Minn.
81 (Gil. 62); St. Anthony Falls Water-Power Co. v. Eastman, 20 Minn. 277
(Gil. 249); Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198: Rosenfield v. Arrol, 44
Minn. 395, 46 N. W. 768; Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N. E.
<»16, and 29 N. E. 775; Rogers v. Ley den, 127 Ind. 50, 26 N. E. 210 (a full
<.'itation of authorities). Cf. Sobieski v. St. Paul & D. R. Co., 41 Minn. 169,
42 N. W. 863; Robel v. Chicago, M. & St. P. Ry. Co., 35 Minn. 84, 27 N. W.
305. One who rushes on a street-car track without looking or listening for
a, car which he knows is approachhig, is guilty of contributory negligence.
Hickey v. St. Paul City Ry. Co. (Minn.) 61 N. W. 893. As to contributory

Ch. 12] ESSENTIAL ELEMENTS. 957

familiar elevator, stuck his head eight or ten inches outside of it^
and was injured, the case was proi)erly taken from the jury.*^^ So
failure on the plaintiflTs part to heed warnings and signals may
justify the court in directing a verdict for the defendant,'®^ but evi-
dence of such failure is more commonh' for the jury.*®^

In the "invitation to alight*' group,®^** the eases in which a re-
covery has been allowed notwithstanding the fact that the passen-
ger undertook to leave a car in motion are exceptional, and depend up-
pend upon peculiar circumstances. Alighting from a moving train
may justify the court in taking the case from the jury.*®* And on
the same principle, where a passenger attempts to get on a train
moving at a dangerous rate of speed, whereby he is killed, it i»

negligence in failure to discover and repair defects in instrumentaUties, see
Richmond & D. R. Co. v. Dudley (Va.) 18 S. E. 274; Gulf, C. & S. F. Ry. Co.
V. Kizziah, 86 Tex. 81, 23 S. W. 578; Chicago, etc., R. Co. v. Branyan, 10 Ind.
App. 570, 37 N. E. 190; Gibson v. Minneapolis, St. P. & S. S. M. Ky. Co., 55
Mhin. 177, 56 N. W. 686; Louisville & N. R, Co. v. Pearson, 97 Ala. 211, 12
South. 176.

«oo Ludwig V. PiUsbury, 35 Minn. 256, 28 X. W. 505. Vide Barbo v. Bassett,
35 Minn. 485, 29 N. W. 198. But resting a hand on and partially out of a
street-car window, so that a projecting sewer plank injures it, leaves the
question of contributory negligence to the Jury. Dahlberg v. Minneapolis St.
Ry. Co., 32 Miim. 404, 21 N. W. 545.

•01 Lendberg v. Brotherton Iron Mln. Co., 97 Mich. 443, 56 N. W. 846.

•02 Kansas City, etc., R. Co. v. Kirksey, 9 C. C. A. 321, 60 Fed. 999; Ward's
Adm'r v. Chesapeake & O. R. Co., 39 W. Va. 46, 19 S. E. 389.

•08 Leading English cases: Metropolitan Ry. Co. v. Jackson, 3 App. Cas.
193; Bridges v. North London Ry. Co., L. R. 7 H. L. 213; post, p. 964, note 630.

•0* Rapalje, J., In Burrows v. Railway Co., 63 N. Y. 556-559; Pennsyl-
vania Co. V. Kllgore, 32 Pa. St. 292; Filer v. New York Cent. R. Co., 49 N. Y.
47; Montgomery & E. Ry. Co. v. Stewart, 91 Ala. 421, 8 South. 708; Renner
V. Northern Pac. R. Co., 46 Fed. 344; Gavett v. Manchester & L. R, Co., 16
Gray (Mass.) 501; Lake Shore & M. S. Ry. Co. v. Bangs, 47 Mich. 470, 11 N.
W. 276; Klrchner v. Detroit City Ry. Co., 91 Mich. 400, 51 N. W. 1059; Penn-
sylvania R. Co. V. AHpell, 23 Pa. St 147; Chicago & A. R. Co. v. Randolph.
53 111. 510; Chicago, B. & Q. R. Co. v. Hazzard, 26 lU. 373; Dougherty v.
Railroad Co., 86 lU. 467; Damont v. Railroad Co., 9 La. Ann. 441; Jefferson-
viUe R. Co. V. Hendricks, 26 Ind. 228; JeffersonvIUe R. Co. v. Swift, Id. 450.
A passenger who alights from a moving car, after seeing one immediately in
front of him fall in getting off, is guilty of contributory negligence, and the
carrier is not liable for his injuries. Brown v. Baiiies, 151 Pa. St. 562, 25
Atl. 144. A passenger on a freight train wished to get off at a station where

958 NEGLIGENCE. [Ch. 12

proper to instruct the jury to find for the defendant*®' This, how-
ever, does not apply where one has safely boarded the moving ear,
and is injured by the subsequent negligence of the defendant, as
in suddenly starting the car.*®* And the tendency of the cases
would seem to be to leave such matters to the jury.**^^ This is also
true of the "level crossing'' cases.**^® And again, a court may find
as a matter of law that there is no negligence or contributory negli-
gence.***

the train was accustomed to slowing up, so that i)a8senger8 could alight
without danger. On this occasion the train did not slacken at the station,
and shortly after passing it the passenger jumped therefrom, and received
injuries which caused bis death. Held, in an action by his administratrix,
that deceased's contributory negligence would defeat a recovery. Brown
V. Chicago, M. & St P. R. Co., 80 Wis. 162, 49 N. W. 807.

•06 Bacon v. Delaware, L. & W. R. Co., 143 Pa. St 14, 21 Atl. 1002. Bt
vide Finnegan v. Railway Co., 48 Minn. 378, 51 N. W. 122.

•00 Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, 51 N. W. 111.

•07 Plain tilf, half asleep, was aroused as the train was leaving his destina-
tion. Held negligence on part of conductor. Ordinarily, jumping from mov-
ing train is prima facie evidence of conti'ibutory negligence, but not here.
Jones V. Chicago, M. & St P. Ry. Co., 42 Minn. 183, 43 N. W. 1114. Whether
or not jumping from a moving street car is negligence Is a question for the
jury. It is not negligence per se. Schacherl y. St. Paul City Ry. Co., 42 Minn.
42, 43 N. W. 837. After a train has stopped, and a passenger proceeds to
alight, it Is not negligence, per se, for her to alight at the invitation and with
the assistance of the brakeman after the train has started again, unless the
speed is so great that the danger is obvious. McCaslin y. Lake Shore & M.
S. Ry. Co., 93 Mich. 553, 53 N. W. 724. And see Strand v. Chicago & W. M.
Ry. Co., 64 Mich. 216, 31 N. W. 184. See pages 219^220, 64 Mich., and page
184, 31 N. W. Whether an employ^ was negligent in jumping fron an engine
to perform his duty is for juiy. Coif v. Chicago, St P., M. & O. Ry. Co., 87
Wis. 273, 58 N. W. 408; Missouri, K. & T. Ry. Co. v. Woods (Tex. Civ. App.)
25 S. W. 741.

008 Ante, p. 881.

009 Tucker v. Baltimore & O. R. Co., 8 C. C. A. 416, 59 Fed. 9G8; Elliott v.
Chicago, M. & St. P. R. Co., 150 U. S. 245, 14 Sup. Ct 85; Union Pac. R. Co.
V. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Missouri Pac. Ry. Co. y. Moseley,
6 0. C. A. 041, 57 Fed. 921.

Oh. 12] CONTRIBUTORY NEGLIGEKCB. 9oi)

SAME— DAMAGES.

268. A cause of action for negligence cannot be made out
without proof of damage of the kind required by
law. Damage is the gist of the wrong.

The distinct common-law remedy for negligence was case. That
is to say^ it gives rise to a cause of action in which the damages are
not direct, are never presumed, but must be pleaded and proved.*^®
It may be stated as axiomatic that no negligence will be actionable
unless it results in an injury or damage.'*^ Thus an attorney's er-
ror, arising from carelessness, is not the basis of recovery against
him unless it produce damage.^ ^^ The plaintiff is condned to proof
of such damages as he has pleaded. If special damages are not
pleaded, they may not be recovered.*" So if the proof fails as to
damages in toto, there can be no recovery. The damages pleaded
and proved must comply with the legal standard. If they are too
petty, the law will apply the maxim *T)e minimis non curat lex."
If they are purely sentimental, they will not complete the cause of
action. And so, if they be remote, the plaintiff may show the other
two elements of negligence, and for failure to show the third — proxi-
mate damage — will fail to recover.

CONTRIBUTORY NEGLIGENCE.

270. To maintain successfully an action for negligence the
ordinary rule is that it must appear that the injury
w^as occasioned by actionable negligence on the
defendant's part, and it must not appear that there
was contributory negligence on the plaintiff's part.^^^
But contributory negligence is no defense to a will-
fol or wanton wrong.

•10 Pig. Torts, 179.

«n Bluedom v. Missouri Pac. R. Co. (Mo. Sup.) 24 S. W. 57-GO.

•"Ante, p. 915.

•IS Hinckley v. Krug (Cal.) 34 Pac. 118.

•i« Washington & G. R. Co. y. Gladmon, 15 WalL 401.

9bO NEGLIGENCE. [Ch. 12

•

The doctrine of couiribulory npp:lij]:ence seems to be founded upon
these considerations: (1) The mutual wrong and negligence of the
parties and the reluctance of the law to attempt an apportionment
of the wrong between them. (2) The principle which requires every
suitor who seeks to enforce his rights or redress his wrongs to go
into court witli clean hands, and which will not permit him to re-
cover for his own wrong. (3) The i)olicy of making the personal in-
terests of parties dependent upon their care and prudence.*^* (4)
The logical necessity of recognizing that, if the plaintiff's own neg-
ligence caused the damage, the defendant is not connected as the
juridical cause. Such considerations^ seem to control courts at pres-
ent, rather than the misleading applicaticm of the maxim "In pari
delicto potior est conditio defendentis." **^®

Analogy to the DefendanVs Negligence,

Negligence, as the word is commonly used, is the tort of the de-
fendant; but much superficial criticism has arisen from a failure to
attend adequately to the similarity of the plaintiff's negligence, or
contributory negligence, and that of the defendant. In the considera-
tion of the general subject upon this point, the negligence of the
plaintiff and the negligence of the defendant have intentionally not
been separated. In many respects they are identical. Both involve
the exercise of care proportionate to the circumstances, whenever
a duty is placed on either party to exercise such care.*^^ But, on
the one hand, the duty of the plaintiff to exercise care is a negative
one. The obligation is imperfect. Its violation is not actionable.
He cannot be sued for a breach of such duty.®^® On the other hand,
unless he has been guilty of a breach of duty, the question of con-

618 The matter of burden of proof is subsequently considered.

•10 Davis V. Guarnleri, 45 Obio St. 470-^89, 15 N. E. 350; Pol. Torts. 3(K);
Clerk & L. Torts, 389; Lord Halsbury in Wakelin v. London & S. W. Ry. Co.,
12 App. Cas. 41.

«iT Brick V. Bosworth, 162 Mass. 334, 39 N. E. 36. But see Cleveland, C,
C. & St. L. Ry. Co. V. Sloan (Ind. App.) 39 N. E. 174. And see Cloutler v.
Grafton & U. R. Co., 162 Mass. 471. 39 N. E. 110.

618 Unless, indeed, such contributory negllK^nce should, in its turn, become
an affirmative, orifflnal cause of damage to defendant's property (»■ person.
Such damage might then be set up by defendant as a counterclaim to plain-

I tiffs cause of action.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 961

tributory negligence cannot arise. Any damage resulting from his
conduct, not otherwise actionable, is damnum absque injuria.'^*
Moreover, the duty, the ^iolation of which involv(\s contributory
negligence, is the duty to avoid doing harm; and contributory neg-
ligence is a defense only to a breach of such duty. If one negli-
gently and proximately contributes to his injury, he cannot recover,
no matter how negligent the defendant may have been, unless such
negligence is so gross as to imply a willful intention to inflict the in-
jury.*^® But when the harm is intentional, as in cases of assault
and battery,*'* or is the result of willful or wanton negligence,*^^
it does not avail to prevent recovery. For esi:«entially the same rea-
son, contributory negligence is no defense to an action for nui-
sance.*^' But negligence and fraud are so closely related from cer-
tain points of view that contributory negligence may bar recovery
in fraud.*'*

«i» Ante, p. 86.

•20 Carrlngton v. LouIsviUe & N. R. Co., 88 Ala. 472. 0 South. 910. Bt
vide McAdoo v. Richmond & D. R. Co., 105 N. C. UO, 11 S. E. 316.

•21 Ruter V. Foy, 46 Iowa, 132; Steinmetz v. Kelly, 72 Ind. 442; Annlston
Pipe-Works v. Dickey, 93 Ala. 418, 9 South. 7*20.

•22 Florida South. R. Co. v. Hirst, 30 Fla. 1, 11 South. 506; Brown v.
Scarboro, 97 Ala. 316, 12 South. 289; Louis villo & N. R. Co. v. Markee (Ala.)
15 South. 511; Christian v. lUlnois Cent. R. Co. (Miss.) 12 South. 710; Lake
Shore & M. S. R. Co. v. Bodemer, 139 lU. 59(J, 29 N. E. r>92; LouisvUle Safety-
Vault & Trust Co. V. Louisville & N. R. Co.. 92 Ky. 2:«. 17 S. W. 567; Louis-
ville & N. R, Co. V. ConlflTs Adm'r (Ky.) 27 S. W. 865; Catlett v. Young, 143
111. 74, 32 N. E. 447; liOuisvUle & N. U. Co. v. Markoe (Ala.) 15 South. 511;
McDonald v. International & G. N. R. Co. (Tex. <Mv. App.) 21 S. W. 774.
On the other hand, In admiralty, defendant's contributory nt'jclipence will
not defeat plaintiff's cause of action, unless his fault is willful, gross, or in-
excusable. The Max Morris, 137 U. S. 1, 11 Sup. Ct. 20. Under the English
admiralty rule In case of collision, when both v(\«»sels are at fault the damage
Is divided. Sherwood, L. T. 16. The contributory nogligonc(» of a per-
son injured, on failure of the engineer to observe tho statutory precautions,
will not bar a recovery, but the jury must consider such contributory neg-
ligence in mitigation of damages. Western & A. R. Co. v. Roberson. 9 C
C. A. 646. 61 FtHl. 592. Cf. Catlett v. Young, 143 111. 74, ;« X. E. 447

•23 Philadelphia & R. R. Co. v. Smith, 12 C. C. A. 3S4. 64 Fed. 679. Con-
tributory negligence, however, has been recognized as a defense to nulsanca
Mayor & City Council of Baltimore v. Marriott, 06 Am. Dec. 32G.

•a* Ante, p. 595, "Deceit*'-

LAW OF TORTS— 61

962 NEGLIGENCE. [Ch. 12

SAME— ELEMENTS OF CONTRIBUTORY NEGLIGENCE.

271. To make out the defense of contributory negligence,

the plaintiff's conduct must have the three essential
elements of negligence; i. e.:

(a) A duty to exercise care;

(b) A violation of that duty in fact; and

(c) Connection as cause of the damage complained ofl

272. The duty of exercising care to avoid injury includes,

inter alia —

(a) The duty of not voluntarily exposing one's person or

property to harm.

(b) The duty of avoiding harm before or after the dam-

age is done, when voluntary and deliberate action
is allowed by circumstances.

272a. The duty of exercising care does not require one to
anticipate a wrongful act.

Exj)omre to Danger.

The care to be exercised by the plaintiff is gOYemed by the same
principles which determine the negligence of the defendant It
varies with the apparent risk. The plaintiff may be negligent in
exposing himself to known dangers, or dangers which he should
know.**^^ Thus the plaintiff may be negligent in interfering with a
dog fight.*** If a drunken man goes to sleep on a railway track,
he takes his chances of being killed before his peril is discovered
and averted.*" So, where a brakeman deliberately put his foot

«2B Lebanon Light, Heat & Power Co. v. Leap (Ind. Sup.) 39 N. B. 57
(meddling with natural gas pipe).

0 26 Matteson v. Strong, 159 Mass. 497, 34 N. B. 1077; Boulester v. Parsons,
ICl Mass. 182, 36 N. E. 790; Raymond v. Hodgson, 161 Mass. 184, 36 N. B.
791; Farley v. Plcard, 78 Hun, 500, 29 N. Y. Supp. 802. Where a person
voluntarily and unnecessarily ijrovokes a vicious animal, and thus Invites or
Induces the injury, knowing the probable consequences, he Is not entitled to
recover. Lynch v. McXally, 73 N. Y. 350. So a woman driving a horse near
an electric road. Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3, 35 N. E.
95. Cf. City of Denver v. Peterson (Colo. App.) 36 Pac. 1111.

027 O'Keefe v. Railroad Co., 32 Iowa, 467; Donaldson v. Milwaukee & St

Ch. 12] CONTRIBUTORY NEGLIGENCE. 963

into an unblocked frog, and, before he could extricate it, was killed,
his recklessness will prevent a recovery.*^® But a pedestrian is
not necessarily negligent in attempting to pass over a road which
he knows to be dangerous, provided a man of ordinary intelligence
would reasonably believe that he could go there.*'*

P. Ry. Co., 21 Minn. 203; Schinolze v. Oliic^ffo. M. & St. P. Ry. Co., 83 Wis.
^9, 53 N. W. 743 (a leading case).

•«a Southern Pac. Co. v. Seley, 152 U. S. 145-156, 14 Sup. Ct. 530. Gen-
erally, as to contributory negligence in getting into a place of risk, see Dixon
V. Pluns, 98 Cal. 384, 33 Pac. 268; Mau v. Morse, 3 Colo. App. 359, 33 Pac.
283; Knox v. HaU Steam-Power Co., 69 Hun, 231, 23 N. Y. Supp. 490 (ele-
vators); Clements v. Louisiana Electric Light Co,, 44 La. Ann. 692, 11 South.
51; Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59; Van Stelnburg's Case, 17
Mich. 99; Williams* Case, 31 Mich. 276; MlUer's Case, 46 Mich. 532, 9 N. W.
841; Staars Case. 57 Mich. 244, 23 N. W. 795; Dickinson's Case, 53 Mich. 47,
18 N. W. 553; Guggenhelm^s Case, 57 Mich. 488, 24 N. W. 827; Id., 66
Mich. 157, 33 N. W. 161; Klanowski's Case, 57 Mich. 528, 24 N. W. 801; Har-
ris* Case. 64 Mich. 447, 31 N. W. 425; Little's Case, 78 Mich. 207. 44 N. W.
137; Richmond's Case, 87 Mich. 374, 49 N. W. 621; Kinney v. Folkerts, 78
Mich. 697, 44 N. W. 152; Id., 84 Mich. 619, 48 N. W. 283. Further, as to con-
tributory negligence on part of servant in taking needless risks: Piper v.
Cambria Iron Co., 78 Md. 249, 27 Atl. 939 (falUng while unloading iron);
Richmond & D. R. Co. v. Bivins (Ala.) 15 South. 515 (catching clothes in
switch); Towner v. Missouri & P. R. Co., 52 Mo. App. 648 (coupling cars
moving four to six miles an hour). Et vide Romona Oolitic Stone Co, v. Tate,
(Ind. App.) 37 N. E. 1065; York v. Railway Co., 117 Mo. 405, 22 S. W. 1081.
Use of defective appliances: Illinois Cent. R. Co. v. Bowles, 71 Miss. 1003,
15 South. 138; Seaboard Manuf'g Co. v. Woodson, 98 Ala. 378, 11 South. 733;
Carter v. OU Co.. 37 S. C. 604, 15 S. E. 928; Hopkins Bridge Co. v. Burnett,
85 Tex. 16. 19 S. W. S86.

•2» Skjeggerud v. Railway Co., 38 Minn. 61, 35 N. W. 572. Cf. Gates v.
Pennsylvania R. Co., 154 Pa. St. 567, 26 Atl. 598. The fact that a traveler
chooses to cross a bridge on foot, knowing that there are no barriers to pro-
tect foot passengers from teams and animals crossing the bridge, thougih it
may be evidence of negligence, does not constitute negligence per se. St.
I^uls Bridge Co. v. Miller, 138 111. 4(55, 28 N. E. 1091; Korrady v. Lake
Shore & M. S. Ry. Co., 131 Ind. 2(il, 20 N. E. 1069; CadwaHader v. RaUway
Co., 128 Ind. 518, 27 N. E. 101; Clayards v. Dethick, 12 Q. B. 439; Wright
V. City of St. Cloud, 54 Minn. 94, 55 N. W. 819; Hall v. Incorporated Town
of Manson (Iowa) 58 N. W. 881; I'arcells v. City of Auburn, 77 Hun, 137,
28 N. Y. Supp. 471; Town of Fowler v. Linqulst (Ind. Sup.) 37 N. E. 133;
Lynch V. Erie City, 151 Pa. St. .'jso. 25 Atl. 43. As between master and serv-
ant, see Galvin v. Old Colony R. Co., 162 Mass. 533, 39 N. E. 186.

9G4 ^£GLIGEXCE. [Ch. 12

The "invitation to alight'' *^^ and the "level crossing*' •"^ groups
of cases are familiar illustrations of careless exposure to dangers.
The same principle applies to contributory negligence as to property.
Thus, leaving an article exposed may prevent recovery for the loss

««o JjSlx v. May()r, 49 Law J. Q. B. KHJ. The question of contributorj* neR-
ll;;ence in getting on or off is ordinarily for the jury, Merritt v. New York,
N. K. & H. R. Co., 162 Mass. 326. 38 N. B. 447; Bischoff v. People's Ry.
Co., 121 Mo. 216, 25 S. W. 908; New Orleans & 0. R. Co. v. Schneider. 8
C. C. A. 571, 60 Fed. 210; North Chicago St. R. Co, v. Bldridge, 151 III. 542,
.{8 N. E. 246; but not always, Victor v. Pennsylvania R. R.. 164 Pa, St. 195.
30 Atl. 381 (where plaintiff aligihted after the car started); Tillett v. Lynch-
burg & D. R. Co., 115 N. C. 662, 20 S. E. 480; Butler v. St. Paul & D. R. Co.
(Minn.) 60 N. W. 1090; Reed v. (Vivlngton & C. Bridge Co. (Ky.) 28 S. W. 149:
Burgin V. Richmond & D. R. Co., 115 N. C. 673, 20 S. E. 473; Toledo, St. L..
& K. C. R. Co. V. Wlngate (Ind. Sup.) 37 N. E. 274 (woman with bundles).
The New York rule Is very strict In respect to boarding a train in motion.
Distler v. Long Island R. Co., 78 Hun, 252, 28 N. Y. Supp. 865; Fahr v. Man-
hattan Ry. Co., 9 Misc. Rep. 57, 29 N. Y. Supp. 1. However, it is not, as a
matter of law, contributory nogligouce for a passenger, after having signaled
the driver of a stage to stop, to attempt to enter the stage before It has fnlly
stopped, where "its motion was hardly perceptible.** Froblsher v. Fifth Ave.
Transp. Co., 81 Hun, 544, 30 N. Y. Supp. 1099. The belief that the train
from which plaintiff stepped while in ukUIou was standing still does not
rebut the presumption of contributory negdigence. In the absence of evidence
showing that such belief was reasonable. Chicago, B. & Q. R. Co. v. Lan-
dauer, 39 Neb. 803, 58 N. W. 434. As to the right of passengicr to believe
that the place at which he alighted is safe, see Cazneau v. Fitchburg R. Co.,
161 Mass. 355, 37 N. E. 311 ; Fallc v. Railroad Co., 56 N. .T. Law, 380, 29 Atl.
157; St. Louis S. W. Ky. Co. v. Johnson, 59 Ark. 122, 26 S. W. 593. It is
not contributory negligence for a passenger on a strett car to remain on the
platform when there is no room Inside. Marlon St. R. Co. v. Shaffer, 9 Ind.
App. 486, 36 N. E. 861. W^here an in toxica ted passenger refuses to go into
the car after being requested to do so by the conductor, but remains on the
lilatform, from which he afterwards falls, he cannot recover for the Injury
(Holt, J., dissenting, on the ground that the conductor should have compeUed
hlm to enter the car, or leave the train at a station). Fisher v. West Virginia
& P. R. Co., 39 W. Va. 366, 19 S. E. 578; ante, p. 957, note 603.

esi Buelow v. Chicago, St. P. & K. C. Ky. I'o. (Iowa) 60 N. W. 617 (running
switch); Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282 (boy 5% years old.
crossing street); Winey v. Chicago, M. & St. P. Ky. Co. (Iowa) 61 N. W. 218
(railway crossing); Link v. Philadelphia & R. R. Co., 105 Pa. St. 75, 30 Atl,
820, 822 (Id.); Tobias v. Michigan Cent. R. Co. (Mich.) 61 N. W. 514 (Id.).
Ante, p. 881.

Ch. 12] COKTRIBUTURY NEaLIOKNCE. 965

or damage, for example, by fire.'*' Oner's knowledj^e, actual or
constructive, may be a mntenal element in di^tennining contribu-
tory negligence. Then»fore, where the owner of a carriage, with
whom the plaintiff was riding, carelessly drove over a pile of sand
in the street with full knowledge of the obstruction, at a rate of
sp(H^d not allowed by ordinance, overturning the carriage, and caus-
ing the injuries complained of, there can be no recovery.®** But
such knowledge do(»s not neressarily control. In an action against
a town for personal injuries caused by the plaintiff's wagon collid-
ing with a post in the street, it appeared that the team became
frightened and got beyond control, but that it was not accustomed
to run away, and that the post was several feet from the traveled
road. It was held, even though plaintiff knew of the post, he was
not guilty of contributory negligence.*** On the same principU*, the

«8 2 Bex V. Kelse, 5 Wash. 300, 31 Pac. 973; Curran v. Weiss, 6 Misc. Uep.
138, 20 N. y. Supp. 8; Richter v. Harper, 95 Mich. 1^21, 54 N. W. 708; D;nvor
& 11. G. R. Co., V. Morton (Colo. App.) 32 Pac. 345. But see Great Western
Ry. Co. V. Hawarth, 39 lU. 347 (open window); Fero v. Railroad Co., 22 X. Y.
209 (open door); Philadelphia & Reading R. Co. v. Hendrlckson, 80 Pa. St. IS:^
(roof); Toledo, W. & W. Ry. Co. v. Maxtteld, 72 111. 95 (Id.). As to faUui-e to
plow trench, see Burlin&ton & M. R. Co. v. Westover, 4 Neb. 208, and Jefferis
V. I^hiladelphia, W. & B. Ry. Co., 3 Houst (Del.) 447. As to exposure of ani-
mals to damages by barb- wire fences, see Boyd v. Burkett (Tex. Civ. App.) 27
S. W. 223. But where defendant railroad company, In repairing its road, al-
tered its embankment on the sides of a stream running through plaintifiC's land,
KO as to extend the embankment further into the stream, and causing it at
times to pond back on plalntiff*s laud, plaintiff is not guilty of contributory
uegligci'Ce because he planted crops on the land knowing that such land was
liable to be overflowed and the crops injm*ed. Knight v. Albemarle & R. R.
Co., Ill N. 0. 80, 15 S. E. 929.

•88 MuUen v. City of Owasso, 100 Mich. 103, 58 N. W. 003 (see dissenting
opinion); Goodlander MiU Co. v. Standard OU Co., 11 C. C. A. 253, C3 Fed. 400
(where a consignee undertook to draw oil from a leaking car, whereby the oil
ran into his engine room, exploded, and destroyed his mill. The negligence of
defendant, the shipper of the car, was held not to be tlie proximate cause);
Louisville & N. R. Co. v. Ward, 10 C. C. A. 100, 01 Fed. 927 (switchman and
hole in the track); Boyd v. Burkett (Tex. Civ. App.) 27 S. W. 2:53 (barb-wire
fence over path).

•84 Town of Fowler v. Linqulst (Ind. Sup.) 37 N. E. 133. How far coiu-ts
go in sending contributory negligence to a jury is seen in the holding that
where a youth was killed by picking up tlie end of an olec trie-light wire, lying
on a sti'eet crossing, which showcMl no si^nis of being alive, the questloJi of

966 ^ ^^:GUGENCE. [Ch. 12

momentary diversion of a i)erson's attention, while walking on a
sidewalk, does not, as matter of law, constitute contributory negli-
gence, so as to prevent a recovery for injuries due to defects in the
sidewalk.**^*^

Avoiding Tlireatened Danger Before Damage is Done,

Where there was anv considerable interval of time between the
discovery of the negligence and its injurious effect, the jury ought to
be made acquainted with the rule of law which requires the plaintiff
to exercise ordinary care to avoid the consequences of the negli-
gence. A failure, under ordinary circumstances, to make diligent
use of available means to avoid a known or apprehended danger,
when it is apparent that if such means had been used the danger
would have been averted, will be regarded as contributory negli-
gence.®^^ But where there are two or more different lines of actions,
any one of which may be taken, and a person of ordinary skill, in the

contributory negligence is for the jury, though, when touching a dead wire, a
few minutes before, he was warned to be careful, and though, while he was
standing there, and in a position to see, a hog on the other side of the road
had come in contact with a live wire, and given evidence of receiving a
shock. Texarkana Gas & Electric Light Co. v. Orr, 51) Ark. 215, 27 S. W. (50.

«3o West V. City of Eau Claire (Wis.) 61 N. W. 813.

637 Green v. Louisville, N. O. & T. R. Co. (Miss.) 12 South. 820; Christian v.
Illinois Cent. R. Co., Id. 710; Bartlett v. Boston Gaslight Co., 122 Mass. 209,
In Keefe v. Chicago & N. W. Ry. Co. (Iowa) GO N. W. 503, plaintiflT's intestate,
while standing idle on tlie track in defendant's yard, was killed by an enijine
which was backing aw^ay from a switch. The court said: *Mt is certfiin that
he was in a place of danger. The presence of the tracks, and ears thereon,
and the movement of engines, were constant warnings to him of danger. It
is the duty of persons employed in such places to be reasonably diligent in
guarding against accidents, and esi>ecially to observe and keep out of the way
of moving engines and cars. They have no right to rely wholly upon the
persons in charge of them to prevent accidents, but must asc due care to avoid
danger. These rules are founde<l upon the necessities of the business of oi>-
erating railways. They are reasonably just, and are fully sustained by the
decisions of this and other courts. Collins v. Railway Co.. 83 Iowa, 34<>, 4i>
N. \V. S18; Magee v. Railway Co., 82 Iowa, 250, 48 N. W. 1)2: Haden v. Rail-
road Co. (Iowa) 48 N. W. 733; Elliott v. Railway Co., 150 U. S. 245, 14 Sup.
Ct. 85; Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. S{5. The jury
would have been justified in finding that tlu» negligence of Keefe contributed
to the injury." It was accordingly held that plaintiff was guilty of contribu-
tory negligence.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 967

presence of imminent danger, is compelled to choose one or the other,
and does so in good faith, the mere fact that it is afterwards discov-
ered, by the result, that his choice was not the best means of escape,
or that no harm would have resulted if he had done nothing, such
choice cannot be imputed to him as negligence.®^® This is clearly
true where the danger to which he is exposed is the result of an-
others negligence.®** Thus, if a i)as8enger jump,®*^ or does not
jump ®** from a moving car, train, or engine, to avoid an impending

«88 Schultz v. Chicago & N. W. R. Co., 44 Wis. G;«; Gumz v. Chicago, St. P.
& M. Ry. Co., 52 Wis. 672, 10 N. W. 11; Stackman v. Chicago & N. W. Ry. Co.,
80 Wis. 428, 50 N. W, 404. But see Baltzer v. Chicago, M. & N. R. Co., 83 Wis.
459, 53 N. W. 885; Grand Rapids & I. R. Co. v. Cox, 8 Ind. App. 29, 35 N. E.
183; Hass v. Chicago, M. & St. T. R. Co. (Iowa) 7u N. W. 81H; Spaiilding v.
W. N. Flynt Granite Co., 159 Mass. 587, 34 N. E. 1134; Adams v. Lancashire
& T. Ry. Co., L. R. 4 C. P. 739; Peoria, D. & E. Ry. Co. v. Rice, 144 lU. 227,
33 N. E. 95; BlackweU v. Lynchburg & D. R. Co., Ill N. C. 151, 10 S. E. 12;
Clayards v. Dethick, 12 Q. B. 439. But see, per Bra ni well, L. J., Lax v. Dar-
Ungton, 5 Exch. Div. 28; Stokes v. Saltonstall, 13 Pet. 181; New Jersey R.
Co. V. Pollard, 22 WaU. 341; Buel v. New York Cent. R. Co., 31 N. Y. 314;
Johnson v. West Chester R. Co., 70 Pa. St 357; Toledo, W. & W. Ry. Co. v.
O'Connor, 77 lU. 391; Mobile & M. R. Co. v. Ashcraft, 48 Ala. 15. But sch'
Chicago & E. lU. R. Co. v. Robei-ts, 44 lU. App. 179; Lincoln Rapid Transit
Co. V. Nichols, 37 Neb. 332, 55 N. W. 872. Where the jury And defendants
were In fault in not giving timely notice of the blast whereby decedent was
killed, or in failing to construct a covering, it is immaterial whether or not
deceased took refuge in a safe place, it being sufficient that he made an effoit
to protect himself. Blaekwell v. Lynchburg & D. R. Co., Ill N. C. 151, 16 S.
B. 12.

«39 Kreider v. Lancaster, E. & :S[. Turnpike Co., 1()2 Pa. St. 537, 29 Atl. 721;
Trowbridge's Adm'r v. Danville Street Car Co. (Va.) 19 S. E. 780; Baltzer v.
Chicago, M. & N. R. Co., 83 Wis. 4.-)9, 53 N. W. 8S5; Dublin. W. & W. R. Co. v.
Slattery, 3 App. Cas. 1155.

«**> Georgia Railroad & Banking Co. v. Rhodes, 5(5 (5a. ♦i45; Stephenson v.
Southern Pac. Co., 102 Cal. 143, 34 Pac. 618, and 36 Pac. 407; Louisville & N.
R. Co. V. Rains (Ky.) 23 S. W. 505; Haney v. Pittsburgh, etc., Ry. Co., 38 W.
Va. 570, 18 S. E, 748: Eckert v. Railroad Co., 43 X. Y. 502; Simmons v. East
Tennessee, V. & G. R. Co., 92 Ga. 658, 18 S. E. 999. So jumping out of room
on account of fire makes contributor^' negligence a question for the jury. Gor-
man V. McArdle, 07 Hun, 4i^4. 22 N. Y. Supp. 479. So as to natural gas bm*n-
ing plaintiffs house. Stoughton v. Manufacturers' Natural Gas Co., 159 Pa.
St 04, 28 Atl. 227. TiOsing hold of hand car in sudden danger not contribu-
tory negligence. Clarke v. Pennsylvania R. Co., 31 N. E. 808, 132 Ind. 19:).

«4i SpauUling v. W. N. Flynt Granite Co., 159 Mass. 587, 34 N. E. 1134; Hiiss

968 NEGLIGENCE. [Ch. 12

collision, or other danger,®** he is not guilty of contributory negli-
gence, and the act will not bar his recovery. Or if a woman in
terror spring aside to avoid a threatened danger from an express
wagon, and injures herself against a wall, she can recover, although
she would have received no injury, had she remained passive on the
sidewalk.**^ But the sudden peril which will excuse what would
otherwise be contributory negligence on the part of the plaintiff

V. Chicago. M. & St. P. K. Co. (Iowa) 57 N. W. SIM. Though a flagman may
huvG signaled persons in a carriage to advance over tlie crossing, yet on dis-
covering a train ahnost on the crossing, and the carriage coming in disregard
of it, he is not negligent in stopping the horse by any means in his power,
even if In doing so he frighten the horse,— a thing which, with cooler judg-
ment, he might have avoided. Floyd v. Philadelphia & R. R. Co., 1G2 Pa. St.
29, 20 Atl. 390. So, in crossing a street, failure to take the best course is not
contributory negligence. Crowley v. Strouse (Cal.) 33 Pac. 466.

e42 Piper v. Minneapolis St Ky. Co., 52 Minn. 269, 53 N. W. 1060.

•48 Coulter V. Adams Exp. Co., 50 N. Y. 585. And see Richmond & D. R.
Go. V. Farmer, 97 Ala. 141, 12 South. 86. Further, as to increasing peril by
effort to avoid. Gibbons v. Wilkesbarre St. R. Co., 155 Pa. St 279, 26 Atl. 417;
Dunham Towing & Wrecking Co. v. Dandelin, 41 111. App. 175 (affirmed 143
111. 409, 32 N. E. 258, but not on this point). But see Graetz v. McKenzie, 9
Wash. 690, 35 Pac. 377. Where a passenger on a street-railway car is
brought into apparent imminent danger from a colhsion at a railroad cross-
ing by the negligence of the motor-man in attempting to cross where he could
see that there was a probability of the engine reaching there fii*st, she can
vecover for injuries received in attempting to flee from it, though she would
have been uninjured if she had kept her seat; but, if the car would not have
been brought into such danger except for the sudden, unexpected, and un-
anticipated obstruction by a wagon, then there would be no liability on
the part of the company. Shaukeubery v. Metropolitan St Ry. Co., 46 Fed. 177.
If plaintiff, trying to escape a kicking mule, jumps Into an excavation render-
ing the street dangerous, to defendant's knowledge, plaintiff can recover for
consequent damages. Bassett v. City of St. Joseph, 53 Mo. 290. Contra,
Moulton V. Inhabitants of Sandford, 51 ^le. 127; Llermann v. Chicago, M. &
St. P. Ry. Co., 82 Wis. 286, 52 N. W. 91; Robinson v. Manhattan Ry. Co., 25
N. Y. Supp. 91; Mengcr v. Lauer, 55 N. J. Law, 205, 20 All. 180. But com-
pare Watson V. Camden & A. R. Co., 55 N. J. Law, 125, 2 > AtL 136. Approach
of a train at a crossing is a distracting circumstance for the jury to consid«
iu determining whether or not plaintiff acted prudently. Loucks v. Chi-
t-ago, M. & St. P. Ry. Co., 31 Minn. 520, 18 N. W. 651. So jumping off car
iu motion, which had nm off the track, would not be a new. iudependent
caus(» between derailment and injury. Smith v. St Paul, M. & M. Ry. Co.,
;5o Minn. 109, 14 N. W. 797.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 969

must ordinarily have been caused by the action of the defendant, and
not of a third person.*** However, negligence cannot be imputed by
law to a person in his effort to save the life of another in extrem{»
peril, unless made under such circumstances as to constitute rash-
ness, in the judgment of prudent persons.'** Such exception to
ordinary liability for failure to avoid harm does not exist where a
person voluntarily and negligently brings an injury on himself, or
puts himself in a place of danger.®** But, where the negligence
complained of resulted in death, the natural instinct of avoiding
harm is a proper consideration for the jury.**^

Avoiding Unnecessary Damage After Injury.

After injury has occurred because of the defendant's negligence,
the plaintiff must take care to avert what hai'm he can, and, if he
fails so to do, his own carelessness becomes an efficient cause, and he,
and not the defendant, should suffer for such subsequent negligence.
Therefore, in an action to recover damages done to the plaintiff's
premises by fire alleged to have been negligently started on the de-
fendant's land, it appearing that the plaintiff discovered the fire
shortly after it reached his premises, and neglected to extinguish it,
though he could have done so, it was held that he had no right to
neglect the obvious means of lessening the damage, and that he could
not recover for any loss sustained by the fire subsequent to the time
he had discovered it and neglected to extinguish it**® In an action
for personal injury the defendant may show that the injury was en-
hanced by the plaintiff's continued use of intoxicating liquors,*** or

«** Trowbridge's Adm'r v. Danville Street-Car Co. (Va.) 19 S. B. 780.

•46 Ackert v. Long Island R. Co., 43 N. Y. 502. And see Spooner v. Dela-
ware, L. & W. R. Co., 115 N. Y. 22, 21 N. E. 696; Llnnehan v. Sampson, 126
Mass. 506; Pennsylvania Co. v. Roney, 80 Ind. 453; Cottrill v. Chicago, M. &
St. P. Ry. Co., 47 Wis. 634, 3 N. W. 376; Simmons v. East Tennessee, V. &
G. Ry. Co., 92 Ga. 658, 18 S. B. 999; Pennsylvania Co. v. Langendorf, 48 Ohio
St. 316, 28 N. E. 172; Gibney v. State, 137 N. Y. 1. 33 N. B. 142.

«*« Vreeland v. Chicago, ^I. & St. P. Ry. Co. (Iowa) 60 N. W. 542.

«*7 Hopkinson v. Knapp & Spaulding Co. (Iowa) 60 N. W. 653.

«*8 TaUey v. Com-ter, 9:5 Mich. 473, 53 N. W. 621. And see Hogle v. New
York Cent & H. R. R. Co., 28 Him, 363; Loker v. Damon, 17 Pick. 284 (fail-
ure to close opening in plaintiff's fence made by defendant); Krum v. An-
thony, 115 Pa. St 431, 8 Atl. 598.

«*» Boggess V. Metropolitan St. Ry. Co., 118 Mo. 328, 23 S. W. 159, and 24
S. W. 210.

970 NKGUGENCE. [Ch. 12

that the plaintiff's imprudence caused new injury.**® Moreover, the
plaintiff's subsequent wrong, if it does not bar recovery, may miti-
gate damages.®*^

No Duty to Anticipate Negligence.

On the other hand, the law recognizes no duty to anticipate the
negligence of others. The presumption is that every person will per-
form the duty enjoined by law or imposed by contract*"* Therefore,
a repairer has the right to rely upon compliance with an ordinance
requiring insulation of wires, and is bound to look for patent defects

«5o Carpenter v. McDavltt, 53 Mo. App. 393. And see City of Galesburg v.
Rahn, 45 111. App. 351, where plaintiff, not a physician, undertook to treat her-
self. Childs V. New York, O. & W. Ry. Co., 77 Hun, 539, 28 N. Y. Supp, 894.
In an action for personal injuries the court properly refused to direct the jury
to disregard the testimony of plaintiff that she did not procure medical attend-
ance because her husband was out of employment. F(»ather v. City of Read-
ing, 1.55 Pa. St. 187, 2« Atl. 212. And see Alexander v. Richmond & D. R. C^..
112 N. C. 720, 16 S. E. 896. A patient is guilty of contributory negligence if
he fail to follow treatment and directions. Potter v. Warner, 91 Pa. St. 362;
(Jelselman v. Scott, 25 Ohio St. 8(j. So, if he negligently throw off splints and
walk on crutches. Hichcock v. Burgett^ 38 Mich. 501.

651 Lurch V. Holder (N. J. Ch.) 27 Atl. 81 (failure to use remedy for black
rot); Burger v. St. Louis, K. & N. W. R. Co., 52 Mo. App. 119 (where defend-
ant could not diminish damage by showing breach of— alleged, but not found-
duty of utilizing carcasses of animals for killing of which the act was brought).
If plaintiff can remedy defect in machinery, and does not, he cannot complain,
Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360. But not if plaintiff could only
remedy by committing a wrong (as abating ditch by going on third person's
land). Fromm v. Ide, 68 Ilun, 310, 23 N. Y. Supp. 56. And see Pennsylvania
R. Co. V. Washburn, 50 Fed. 335 (failure to remove cargo from careened boat-
l)ecause stevedores demanded double wages); Childs v. New York, O. & W.
Ry. Co., 77 Hun, 539, 28 N. Y. Supp. 894 (where plaintiff, caused to alight by
defendant's negligence at w^-ong place, walked to destination, although she
could have found a place to stay all night, she cannot recover for injury to
her health). Cf. Schumaker v. St. Paul & D. R. C^o., 46 Minn. 39, 48 N. W. 559.

0 62 It was said in Engel v. Smitli, 82 Mich. 1, 4(i N. W. lU'p. 21, that "it is a
sound rule of law that it is not contributory negligence not to look out for
danger wliere there is no rwison to apprehend any." In Thomas v. Railway
Co., 8 Fed. 729, it was held that *'it was cori-ect to instruct the jury that
l)laintiff had a right to assume that the defendant would use more care, in
view of the obstructed condition of the crossing, than ordinary. The law will
never hold it imprudent in any one to act upon the presumption that another.
In his conduct, will act in accordance with the rights and duties of both."— olt-

Ch. 12] CONTRIBUTORY NEGLIGENCE. • 971

only.*'* On the same principle, a teamster has a rif^ht to assume
that an engine driver will use ordinary care.®^* Even children are
presumed to know of statutory duty. A boy of 10 is presumed to
know of the statutory duty of a railway company to keep a crossing
in safe condition.® ^^'^ He may act on conventional invitation to go
over a public crossing.***

273. In order that the plaintiff's contributory negligence

may bar his recovery, it must be connected as at
least a part of the legal cause of the damage.^

274. There ma7 be a recovery, notmrithstanding mutual

negligence on the part of the plaintiff and the de-
fendant—

(a) If the injury w^ould have happened although the

plaintiff had been in no wise negligent;

(b) If the defendant, after he has discovered the danger

to which the plaintiff is exposed by his own negli-
gence, refuses or neglects to exercise due care, un-
der the circumstances, to avoid harm.^

\ng Newson v. Railroad Co., 29 N. Y. 3a3; LIcltly v. Railway, 40 Mo. 507;
Ijanffhoff V. Railroad Co.. li) Wis. 515; Hejjau v. KaiJway Co., 15 N. Y. 383;
Pennsylvania R. Co. v. Ogier, 35 Pa. St. GO-72; Garrett v. W. U. Tel. Co.
(Iowa) 58 N. W. lOiU; Gee v. Metropolitan Ry. Co., L. R. 8 Q. B. 101; Wyatt
V. Great Western Ry. Co., 6 Best & S. 709; Cooley, Torts, (k>S>-«61.

«5« Clements v. Louisiana Electric Light Co., 44 La. Ann. G02, 11 South. 51.
Cf. Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E. 344.

«84 Hobson V. New Mexico & A. R. Co. (Ariz.) 11 Pac. 545; NoiiJieasteni R.
Co. V. Wanlcss, L. R. 7 H. L. 12-15; Dublin, W. & W. Ry. Co. v. Slattery, 3
App. Ca.s. 11 .V); Bridgets v. North I^ndou R. Co., 7 H. L. Cas. 213; Praeger
V. Bristol & E. R. Co., 24 Law T. (N. S.) 105,

666 Ix)uisville, N. A. & C. R. Co. v. Red, 47 111. App. 662.

•5« Applied to a boy of 13, cros.sing over bumpers. Faulk v. Central R. & B.
Co., 91 Ga. 360, IS S K. 3(M.

667 Missouri Pac. Ry. Co. v. Moseley, 6 C. C. A. G41. 57 Fed. 925.

688 CaiTioo V. West Virginia C^'ut. & P. Ry. Co.. 35 W. Va. 381), 14 S. E. 12.
This statement of the rule is selet-ted because its clearness overbalances Its
inaccuracy or incompetency.

972 NEGLIGENCE* [Ch. 12

The requirement that contributory nef^liji^ence, to bar the right of
action, must be the proximate cause, witliout which the damage
would not have occurred, is the logical application of the general
principle that the plaintiff's wrongdoing, in order to disentitle him
to recover, must be the cause, in law, of the damage. If the wrong
be merely collateral, it does not affect the right to legal redress.
Thus, it would be manifestly absurd to hold that if a passenger was
sitting with his arm out of a window, and the injury inflicted would
have been just the same if his elbow had been inside of the window,*
he could not recover, on account of his position.'*^* So, if one be negli-
gent in boarding a moving train, this does not affect his right to re-
cover for damages consequent upon the violence of the brakeman in
pushing him off the car.*®® And a surgeon called to set a leg care-
lessly broken will not be heard to say, in an action for his own care-
lessness in treating his patient, that the latter's negligence in break-
ing his leg caused the crooked or shortened limb.®*^ On the other
hand, a person is not responsible for damages proximately caused
by any pereon except himself. If the damage complained of was
legally caused by the plaintiff, he must bear it, as the consequence
of his own act In such a case, and in case the damage was caused

650 2 Wood, Ry. Law, 1257; (5ulf, C. & S. F. Ry. Co. v. Danshank, 6 Tex.
Civ. Api). 380, 25 S. W. 2i)5; Carrico v. West Virginia, Cent & P. Ry. Co., 30
W. Va. 86, 19 S. E. 571. The snine principle applies to intoxicated persons.
Ante, p. 1C5. "Wrongdoer." Et vide Loftus v. Inhabitants of North Adams,
IGO Mass. 161, 35 X. E. 674; Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wis.
(JOl, 55 N. W. 771. Cf. BradwcU v. Pittsburgh & W. E. Pass. Ry. Co., 153 Pa.
St 105, 25 Atl. 623; Buddenberg v. Charles P. Chouteau Transp. Co., 108 Mo.
304, 18 S. W. 970. So, riding on baggage car (Jacobus v. St Paul & C. R. Co..
20 Minn. 125, GU. 110), or on a street-car platform (Matz v. St Paul City Ry.
Co., 52 Minn. 159, 53 N. W. 1071), may be forbidden, but are not necessarily
contributory negligence (Richmond & D. R. Co. v. Brown, 89 Va. 749, 17 S. E.
132; LouisvUle & X. R. Co. v. Pearson, 97 Ala. 211, 12 Soutli. 176).

«8o Ueed v. Pennsylvania R. Co., 50 Fed. 184. Et vide Gale v. Lisbon, 52 N.
H. 174; Smith v. Conway, 121 Mass. 216; Spoflford v. Uarlow, 3 Allen. 176;
Welch V. Wesson, 6 Gray, 505. As to fire as a remote cause, see Atchison,
T. & S. F. R. Co. V. Bales, 16 Kan. 252; Atchison, T. & S. F. R. Co. v. Stan-
ford, 12 Kan. 354; Doggett v. Richmond & D. R. Co., 78 N. C. 305.

001 Lannen v. Albany Gaslight Co., 44 X. Y. 459-463; Hibbard v. Thomp-
son, 109 Mass. 286-289. And see Bartlett v. I^)ston Gaslight Co., 117 Mass.
533; Clayards v. Dethick, L. R. 12 Q. B. 439-495.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 973

by a third person,*'^ the defendant is not a legal cause, and cannot
be logically held responsible.

Avoidable ConseqiieiiceH — English Rule.

In Davies v. Mann,^*^ the plaintiff negligently allowed his fettered
donkey to be in a highway, and the defendant's wagon was driven in
broad daylight over the donkey. The defendant was held to be aware
of the plaintiff's negligence; but, as his rate of speed was improper,
he was held liable for damages, notwithstanding the plaintiff's neg-
ligence in allowing the animal to run at large. This case, while
criticised,**^* seems to be a simple and logical application of the
principle of proximate cause."®*^ Tliere is no necessary, although
there may be an imaginary, inconsistency between the case and
Butterfleld v. Forrester. ****• Here a person riding violently down a
street in daylight was injured by coming in contact with a pole
placed across the street. It was held, in an action against the
owner of the pole, that the plaintiff could not recover because he
might have evaded the consequence of the owner's negligence. In
Tuff v. Warman,**^ a barge negligently operated without a lookout
was run down by a steamer. It was distinctly held that the plain-
tiff's negligence would not prevent his recovery, unless it be such

««2 Arey v. City of Newton, 148 Mass. 598. 20 N. E. 327, and cases cited page
6C»2, 148 Mass., and page 327, 20 N. E.

««' 10 Mees. & W. 546. See State v. Sauer (N. J. Sup.) 26 Atl. 180; Stiles
V. (;eesey, 71 Pa. St. 439.

«04 Mr. Beach (Contrib. Neg. § 5) considers this a persistent and mischief -
making authority.

006 The shallowness of this cHticism is manifest in the opinion of Cari)eu-
ter, J., in Nashua, I. & S. Co. v. Worcester & N. R. Co., 62 N. H. 159. ••This
case has been much misunderstood and maligned, and its principles put to
very unjust uses and applications. Analysis of it will demonstrate the per-
fect soundness of its reasoning, and the validity of the principle there laid
down." Priest, District Judge, in Kirtley v. Railway Co., 65 Fed. 386. In
this case it was held that recovery cannot be had for a person killed on a
track, where the engineer did not discover him in time to prevent the acci-
dent, though by ordinaiy care he might have done so, deceased being negli-
gent.

6«« 11 East, 60; Day v. Highland St. Ry. Co., 135 Mass. 113.

««7 2 C. B. (N. S.) 740, 5 C. B. (N. S.) 573, and 27 Law J. C. P. 322. Cf.
Murphy v. Deane, 101 Mass. 455, 460. And see Horrigan v. Inhabitants of
Clarksburg, 150 Mass. 218-220. 22 N. E. 897, and Pierce v. Cunard S. S. Co.,
153 Mass. 87-89, 26 N. E. 415.

974 NEGLIGENCE. [Ch. 12

that, without it, the harm complained of could not have happened;
"nor if the defendant, by the exercise of care on his part, might
have avoided the consequence of the negligence or carelessness of
the plaintiff," In Radley v. London & Northwestern Ry. Co.,°** a
railway corporation ran trucks on a siding under a bridge 8 feet
from the ground. One truck contained another. Their joint height
amounted to 11 feet. The driver of the engine, feeling resistance
when the trucks struck the bridge, pushed ahead, and broke the
bridge. It was originally held that the owner of the bridge could
only recover if the accident happened solely through negligence of
the engineer, and that, if both sides were negligent, so as to con-
tribute to the accident, no recovery could be had. This was, on
appeal, regarded to be a misdirection, because the result might have
been avoided by the exercise of ordinary care and diligence. These
cases have settled the English rule to the effect that, in the case of
successive acts of negligence, the one who had the last opportunity
of avoiding harm by the exercise of due care, under the circum-
stances, is liable if he did not do so.

Same — Avwican Ride,

The supreme court of the United States held, in Inland & Sea-
board Coasting Co. v. Tolson,'®® that any negligence on the pai't of
the plaintiff, dii-ectly contributing to his injury, would incapacitate
him from recovery; but that such negligence on his part would not
have this effect if the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequence of the plaintiff's
negligence. It was therefore left to the jury to decide the ques-
tion of contributory negligence, where a steamboat negligently
crashed into a wharf and damaged a person's foot, which he had care-
lessly placed between the planking. The same general doctrine is
recognized in many subsequent cases.®^*

80 8 L. R. 1 App. Cas. 754.

860 139 u. S. 551, 11 Sup. Ct. 653. Et vide page 558, 139 TT. S., and page G53,
11 Sup. Ct., reviewing cases. Et vide 3 HaiT. Law Rev. 2(>3.

87 0 If the proximate aud immediate cause of the injury can be traced to
the want of ordinary care and caution in tlie persons injuretl, an action for
the injury cannot be maintained unless it further appears that the defend-
ant might, by the exercise of reasonable care and pnidence, have avoided
the conseciuences of the injured party's negligence. Lamar, J., in Grand
Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Clark v. AVilmington

Ch. 12J CONTRIBUTORY NEGLIGENCE. 975

Connection as Qitise,

The term "proximate cause,'- in this connection, the English au-
thorities do not regard as the best possible temi. It is suggested
that "decisive cause" or "decisive antecedent" . would convey the
meaning better,*^^ and that "where the respective negligences are
equal, the party who was the 'efficient cause' is responsible." •'^
The supreme court of the United States uses the terms "proximate,"
"direct," and "efficient." ^'^

Whatever phrase be employed, however, care should be used to
avoid requiring the contributory negligence on the part of plaintiff
to have "materially" contributed to the injury. "Courts are in-
clined to regard as error any limitation upon the effect of any de-
gree of contributory negligence of the plaintiff as defeating his right
of recovery." '^^ And the question is not which is the "more prox-
imate" of two possible causes.®^*

& W. R. Co., 14 S. E. 43; Speucer v. Illinois Cent. R. Co., 29 Iowa, 55; New-
port News & M. V. Co. v. Howe, 3 C. C. A. 121, 52 Fed. 303; Morris v. Chi-
cago, B. & Q. Ry. Co., 45 Iowa, 29; Deeds v. Chicago, R. I. & P. R. Co., 69
Iowa, 164, 28 N. W. 488; Czezewzka v. Railway Co. (Mo. Sup.) 25 S. W. 911;
McKean v. Railroad Co., 55 Iowa, 192, 7 N. W. 505; O'Rourke v. Chicago, B.
& Q. Ry. Co., 44 Iowa, 526; Denver & B. P. Rapid Transit Co. v. Dwyer
(Colo. Sup.) 36 Pac. 1106; Nashua, I. & S. 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. Omnibus Cable Co. (Cal.) 34 Pac. 124. And cf. Holmes v. South.
Pac. Coast Ry. Co., 97 Cal. 161, 31 Pac. 834, with Overby v. Chesapeake & O.
Ry Co., 37 W. Va. 524, 16 S. B. 813; Pierce v. Cunard S. S. Co., 153 Mass. 87.
26 N. E. 415; Evarts v. St. Paul, M. & M. Ry. Co. (Minn.) 57 N. W. 459;
Keefe v. Chicago & N. W. Ry. Co. (Iowa) 60 N. W. 503; Little v. Superior
Rapid Tiansit Ry. Co. (Wis.) 60 N. W. 705. This rule applies usually in
cases when the plaintiff or his property is in some position of danger from
a threatened contact with some agency under control of the defendant, when
the plaintiff cannot, and the defendant can, prevent the injury,

•71 Pol. Torts, § 380.

•7 2 Clerk & L, Torts, 383.

•7 3 Case in note 609, supra.

• 74 Monongahela City v. Fischer, 111 Pa. St. 9, 2 Atl. 87; Oil City Fuel
Supply Co. V. Boundy, 122 Pa. St. 449, 15 Atl. 805; Mattimore v. City of Erie,
144 Pa. St 14, 22 Atl. 817; Eiie Tel. & Tel. Co. v. Grimes, 82 Tex. 89, 17 S.
W. 831; Banning v. Chicago, R. I. & P. Ry. Co. (Iowa) 56 N. W. 277. Et vide
Poi-tman v. City of Docorah, Id. 512; North Birmingham St. R. Co. v. Calder-
wood, 89 Ala. 247, 7 South. 360.

•7 6 If plaintiff is on a track, and walk on It without looking behind him.

976 NEGLIGENCE. [Ch. 12

But, while the authorities are generally agreed as to this funda-
mental proposition, in its application there is much uncertainty and
confusion. There is material error in the common statement that,
if a person's injury could not have occurred except for his negli-
gence, or if his negligence contributed to his injury, he cannot re-
cover.°^° His negligence may be a sine qua non of the damage,
and be prior to, concurrent with, or subsequent to the defendant's
negligence. In any of these cases the negligence may be contribu-
tory. Merely verbal reasoning on such '*an unsafe and much too
loose" *^' ijerm as contributory negligencti has naturally produced dire
confusion in reasoning and adjudication. It may be a condition,
and not a cause,*^* It may be remote, but not proximate. It may be
of such a character as to put upon one person the duty of avoiding
harm to another even though such other be a wrongdoer, and al-
though damage could not have happened to him but for his wrong.
The violation of this duty may be actionable.

The ignorance of the plaintiff and the defendant, respectively, and
the fact as to which one is in motion and which one, or whether
both, are present at the time the damage is done, may also affect
their relative rights.*^ • These considerations are often overlooked

aud Is struck by an engine, where there was failure to ring a bell, his negli-
gence directly contributed to the wrong. Missouri Pac. R. Co. v. Moseley.
(i C. C. A. 641, 57 Fed. 921.

«7e In other words, that plaintiff's negligence bars recovery when it la a
sine qua non of his damage. '*When a person's own negligence pr want of
ordinaiy care or caution so far contributes to an injury to himself that but
for such negligence or want of ordinaiy care or cauticm on his part the Injury
would not have happened, he cannot recover therefor." Baltimore & P. Ry.
Go. V. Jones, 95 U. S. 439. It Is almost equally misleading to say that plain-
tiff cannot recover if he, **by some negligence on his part, directly contributed
to the injury, it was cau8e<l by the joint negligence of both, and no longer
solely by the negligence of tlie defendant, and that formed a defense to the
action." Lord Esher, in Tliomas v. QuartennainL*, 18 Q. B. Dlv. G85. The
statement of Bowen, J., in the same case, is much clearer. And see Mc-
Grath v. City & S. Ry. Co., 93 Ga. 312, 20 S. E. 317; Walker v. City of Viclts-
burg, 71 Miss. 800, 15 South. 132.

«7 7 Cnnnpton, J., In Tuff v. Warman, 5 C. B. (N. S.) 573.

«7 8 As blindness of an unattended traveler Icilled by a collision, even if
escape might have been possible if he had had his sense of sight. St. Louis.
I. M. & S. R. Co. V. Maddry, 57 Ark. 306. 21 S. W. 472.

oTo Clerk & L. Torts, 38()-3aS, incl. In Butterfield v. Forrester, 11 East.
60, and Radley v. London & N. W. R. Co., 1 App. Gas. 754, defendant was

Ch. 12] CONTRIBUTORY NEGLIGENCR. 977

in determining whether, in a given case, a person's negligence ia
sncb as to prevent his recovery at law.

Perhaps the most philosophical statement of the law of contribu-
tory negligence to be found is that of "Mr. Innes:'*® '*If a person ia
harmed by the negligence of another, and he has by his own con-
duct contributed to bring about the hann, he is still entitled to
redress from the other person, if he was unable to avoid the conse-
quences of the other person's conduct.®®^ If a person is harmed by
the negligence of another, and he, by his own conduct, contributed
to bring about the harm, and if he was able to avoid the conse-
quences of the negligence of the other person, but did not avoid
them, he is still entitled to redress, if the other person was able to
avoid the effects of the conduct of the person harmed, but did not
avoid them.**'* If a person is harmed by the negligence of another,
and he has by his own conduct contributed to bring about the harm,
if he was able to avoid the consequences of the conduct of the other
person, but did not do so, and the other person was not able to avoid
the effects of the conduct of the person harmed, the person harmed
is not entitled to redress." •'•

ignorant of negUgenee of plaintiff. But in the former pIniutiiT was in motion
at the time of the accident, and in the latter he was not. And see Nashua
Iron & Sr€»el Co. v. Worcester & N. Ry. Co., 62 N. H. 159.

680 Innis, Torts, c. 5, § 123, p. 136.

681 Davies v. Mann, 10 Mees. & W. 545; ante, p. 973. Here plaintiff could
recov^ despite his precedent act of negligence, if he could not have avoided
the consetiuence of defendant's subsetiuent conduct producing damage. Oom-
paPB Richardson v.* Metropolitan Ity. Co., 37 L. J. C. P. cWJO. Butterfield v.
Forrester, supra, involves a precedent act of defendant and subsequent act of
plaintiff producing damage. Kt vide Flower v. Adam, 2 Taunt. 314. Simul-
taneous act of a defendant producing damage to plaintiff, no recovery.
EUU V. Warren, 2 Starkie, 377. And see Northern Central Ry. Co. v. State,
29 Md. 420.

682 Radley v. Loudon & N. W. R. Co., 1 App. Cas. 754, 46 L. J. Exeh. 573.
688Mangan v. Atterton, 4 Hurl. & C. 388 (criticised by Cockburn, J., la

Clark V. Chambers, 3 Q. B. Div. 32); Abbott v. Maxtie, 2 Hurl. & C. 744;
Neal V. GiUett, 23 Conn. 437. Cf. Bailey v. Cincinnati, N. O. & T. P. IL
Co. (Ky.) 20 S. W. 198; Stanley v. Union Depot R. Co., 114 Mo. 606, 21 S. W.
832. No one can justiy complain of another's negligence, which, but for his
own interposition, would be harmless. Parker v. Adams, 12 Mete. (Mass.f
415; Nashua Iron & Steel Co. v. Worcester & N. R, Co., 62 N. H. 15I)-163; State
V. Manchester L. R. Co., 52 N. II. 528, 557; White v. Wiuuismmet Co., 7 Cuali.

LAW OF TORTS— 62

978 NEGLIGEKCE. [Ch. 12

SAME— COMPARATIVE NEGLIGENCE.

276. The doctrine of comparative negligence is not gener-
ally recognized. Courts decline to apportion dam-
age according to the blame.

If one is guilty of gross negligence, it has been held that he can-
not set up a trifling negligence or inadvertence on the part of an-
other as a defense.®®* Therefore, if a railroad company is grossly
negligent at a railroad crossing, the slight negligence of a youthful
driver v^ill not deprive him of his right to damages.*®' But, while
some cases have fully recognized the doctrine of comparative negli-
gence, and have undertaken to strike a legal balance between the
negligence of the two persons,® ®® the general trend of opinion is

(Mass.) 155-157; Roblnfion v. Cone, 22 Vt 213. If a patient's own negli-
gence contributes to her damages as well as tJie malpractice of defendant, she
cannot recover. Becker v. Janeniskl, 27 Abb. N. C. 45. Accordingly, if a
druggist by mistake sell one medicine for another, and injuries result to
plaintiff from taking it, it is no defense that a physician negligently treated
the case. But it is otherwise if the negligence of the physician and patient
concur. Brown v. Marshall, 47 Mich. 576, 11 N. W. 392. Compare Murdock
V. Walker, 43 lU. ^pp. 590. While this holding may accord with the rule that
the legal cause need not be the sole cause of the harm complained of, the
line is a line one. And it is insisted in Du Bois v. Decker, 130 N. Y. 325, 29
N". E. 313, that plaintiff's fault should operate only by way of mitigation of
damages.

8 84 4 Am. & Eng. Enc. Law, 367; Bailey, Mast. & S. 403.

• 85 Schindler v. Milwaukee, L. S. & W. Ry. Co., 87 Mich. 400, 49 N. W. C70.
Compare Long v. Township of Milford, 137 Pa. St. 122, 20 Atl. 425, with
Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817. Et vide Galena &
C. Ry. Co. V. Jacobs, 20 111. 478-197, per Breese, J.; North Chicago Rolling
Mill Co. V. Johnson, 114 111. 57, 20 N. E. 180; East Tennessee, V. & G. Ry.
Co. V. Aiken, 89 Tenn. 245, 14 S. W. 1082. In Kentucky the rule applies only
SIS to cases resulting in death. Illinois Cent. R. Co. v. Dick, 91 Ky. 434, 15 S.
W. 605.

o8« Jacobs' Case, 20 111, 478; Chicago, etc., Ry v. Gregory, 58 lU. 272;
North ChicagK) RoUing-Mill Co. v. Johnson, 114 111. 57, 29 N. B. 186; Chicago,
B. & Q. R. Co. V. Warner, 123 111. 38, 14 N. E. 206; Tomle v. Hampton, 129
111. 379, 21 N. E. 800; Willard v. Swansen, 126 111. 381, 18 N. E. 548; Louis-
ville, N. A. & C. Ry. Co. v. Johnson, 44 111. App. 56; City of Beardstown v.
Smith, 150 111. 169, 37 N. E. 211; Calumet Iron & Steel Co. v. Martin, 115

Oh. 12] CONTRIBUTORY NEGLIGENCE. 979

to determine the defendant's liability by the test of proximate, effi-
cient, or distinctive cause.'*^ Even in Illinois, the latest decisions
no longer recognize the doctrine of comparative negligence.*** The
true rule seems to be that "it is an incontestable principle that
where the injury complained of is the product of mutual or concur-
rent negligence^ no action for damages will lie. The parties being
mutually at fault, there can be no apportionment of damages. The
law has no scale to determine in such cases whose wrongdoing
weighed most in the compound that occasioned the mischief." It
has, however, been held by the circuit court of appeals, in Alaska
Treadwell Gold Min. Co. v. Whelan,**®® that "gross negligence of a de-
fendant may excuse slight contributory negligence of the plaintiff."

m. 358, 3 N. E. 456, followed In Atchison, T. & S. F. Ry. Co. v. Feehan, 149
111. 202, 36 N. E. 1036; Kentucky Cent. Ry. Co. v. Smith, 93 Ky. 449, 20 S.
W. 392; LouisvUle. C. & L. Ry. Co. v. Mahony, 7 Bush (Ky.) 235; Sullivan
V. Louisville Bridge Co., 9 Bush (Ky.) 81; Jacobs v. LouisvUle & N. R. Co.,
10 Bush (Ky.) 263. The admiralty rule Is to divide damage. The Max Mor-
ris, 137 U. S. 1, 11 Sup. Ct. 29. However, in a common-law action for a
maritime tort based on collision, this rule does not apply, and, If both vesseln
are culpable in respect of faults operating directly and Immediately to produce
a collision, neither can have damages for injuries so caused. Belden v.
Chase, 150 U. S. 674, 14 Sup. Ct. 2G4; Atlee v. Packet Co., 21 Wall. 389.

•87 Ante, p. 971. Et vide Kowen v. New York, N. H. & H. Ry. Co., 59 Conn.
3G4, 21 Atl. 1073; Eric Tel. & Tel. Co. v. Grimes, 82 Tex. 89, 17 S. W. 831;
(IJalveston, H. & S. A. Ry. Co. v. ThornsbeiTy (Tex. Sup.) 17 S. W. 521; Pree-
cott & A. C. Ry. Co. v. Rees (Ariz.) 28 Pac. 1134; Dennis v. Harris (Sup.) 19
N. Y. Supp. 524; Fenneman v. Holden, 75 Md. 1, 22 Ati. 1049; O'Keef v. Chi-
cago R. Co., 32 Iowa, 467 (i>er Cole, J.); Johnson v. Tilson, 36 Iowa, 89; A. L.
& J. J. Reynolds Co. v. Third Ave. R. Co., 8 Misc. Rep. 313, 28 N. Y. Supp.
734; Boyd v. Burkett (Tex. Civ. App.) 27 S. W. 223; Chicago, K. & N. B. Co.
V. Brown, 44 Kan. 384, 24 Pac. 497.

«s8 City of Lanark v. Dougherty, 153 111. 103, 38 N. B. 81)2.

«»o 12 C. C. A. 225, 64 Fed. 462.

980 NEGLIGENCE. [Ch. 12

SAME— VICARIOUS NEGLIGENCE.

276. The contributory neglig^ence of a person other than
the plaintiff is a proximate cause of harm, and op-
erates as a bar to recovery, only vrhen such person
sustains a relation to the plaintiff vrhich makes the
latter liable to third persons for the negligence of
such other person.

Wliere third persons are involved in the alleged contributory neg-
ligence, the plaintiff is not deprived of his remedy unless it be shown
that such persons and himself are so identified by the law that their
negligence may be imputed to him. Thus, as between master and
servant, the same principle which makes the master liable for the
negligence of his servant attributes to the master the contributory
negligence of his servant in dealing with his mastei^'s business, and
prevents recovery by the master for wrong caused by his servant's
negligence.'®^ On the other hand, an employ^ is not so identified
with a coemployt^ that the latter's negligence is necessarily imputed
to the employd®®^

The doctrine of identification was applied in Thorogood v. Bry-
an ••• (1849) so as to hold that a passenger in one omnibus injured by
a collision caused by the negligence of the driver was so identified
with such driver as to prevent his recovery of damage because of the
driver's contributory negligence. This doctrine though subsequent-

«»i La Riviere v. Pemberton, 46 Minn. 5, 7, 48 N. W. 40G. Here the defense
of contributory negligence of plaintiff's servant in allowing cattle to go at
large availed to defendant in an action by tbe mastor to recover damages for
cattle which dropped through a hole in the ice made by icemen. The negli-
gence of a nurse injuring a chUd is imputable to the parents of the child.
Schleulis V. Central Pac. Ry. Co. (Ky.) 23 S. W. 589.

«92 Poor V. Sears, 154 Mass. 539, 28 N. E. 1040, applied so that negligence of
coemploy6s in not warning plaintiff of a falling shaft was not imputed to
plaintiff. Wrong of children in vexing a ram is not attributable to teacher
whom the ram attacked. Kinmouth v. McDoiigall, 04 Hun, 63G, 19 N. Y.
Supp. 771.

«»8 Thorogood v. Brj-an, 8 C. B. 115. Et vide Bridge v. Grand Junction Ry.
Co., 3 Mees. & W. 244; CatUin v. HiUs, 8 C. B. 123.

Cll. 12] CONTRIBUTORY NEGLIGENCE. 981

ly followed,*** was finally overruled in England. In The Bemina •*"
(1887) a collision occurred between two steamships, through the neg-
ligence of the master and crews of both vessels, and an engineer and
passenger on board of one of the ships were drow ned. Neither had
anything to do with the negligent navigation. The representatives
of the deceased persons were held entitled to recover against the
owners of the colliding vessel on which they were not riding.

Lord Herschell said, in commenting on the three reasons assigned
in Thorogood v. Bryan : "To say that it [the negligence of the driver]
is a defense, because the passenger is identified with the driver,
appears to me to beg the question, when it is not suggested that
this identification results from any recognized principles of law,
or has any other effect than to furnish tliut defense, the validity of
which is the very point in issue. • • • What kind of control has
the passenger over the driver which would make it reasonable to
hold the former affected by the negligence of the latter? ♦ ♦ •
And when it is attempted to apply this reasoning to passengers
traveling in steamships or on railways, the unreasonableness of
such a doctrine is even more glaring. * * * If the master in such
case could maintain no action, it is because there existed between
him and the driver the relation of master and servant. It is clear
that, if his driver^s negligence alone had caused the collision, he
would have been liable to an action for the injury resulting from
it to third peraons. The learned judge would, I imagine, in that
case, see a reason why a passenger in the omnibus stood in a bet-
ter position than the master of the driver."

In rendering this»decision, the English followed the lead of the
American courts. The original doctrine had been previously re-
jected in Chapman v. New Haven R Co.,*** and by the supreme
court of the United States in Little v. Hackett.**^ It was held in
the latter case that a person who had hired a public hack, and

694 Armstrong v. Lianeasbire & Y. U. Co., L. U. 10 Exch. 47. And see Child
V. Heam, L. R. 9 Exch. 176.

«»B L. R. 13 App. Cas. 1; Chase, Ixjad. CaH. 233.

«9o Chapman v. New Haven U. Co., 19 N. Y. 341.

•97 (1886) 116 U. S. 30C, 6 Sup. Ct. 391,— **a decision of the supreme court of
United States, whose decisions, on accomit of Its high character for learning
and ability, are always to be regarded with respect." Herschell, .7., In Tlie

982 NEGLIGENCE. [Ch. 12

given the driver directions as to the place to which he wished to
be conveyed, but exercised no other control over the conduct of the
driver, was not responsible for the latter's acts or negligence, nor
prevented from recovering against a railroad company for injury
suffered from a collision of its train with the hack, caused by the
negligence of both the managers of the train and the driver. It is
the almost universally accepted opinion that the negligence of a
public or hired carriage is not to be imputed to a passenger who in
the management of the conveyance exercised no control/*^® If, how-
ever, the person being conveyed by such vehicle assumes control,
and gives the driver directions, beyond merely naming his destina-
tion, he may become a dominus pro tempore, and make the driver
his servant.®*^* But one who rides by invitation, with an apparently
safe horse, and a driver whom he has no reason to believe incompe-
tent, and exercises no control over either, is not chargeable with
any negligence of the driver contributing to an accident.'^®® While

Bernlna, 13 App. Cas. 10. This case settled the law in tbis country, and seems
to have convinced the English judges of the error in Thorogood v. Bryan, S
C. B. 115. Sanborn, J., In Union Pac. Ry. Co. v. Lapsley, 2 C. C. A. 149, 51
Fed. 174^-178.

«»8 Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. 310; Larkin v. Bur-
lington, C. R. & N. Ry. Co., 85 Iowa, 492, 52 N. W. 480; East Tennessee, V.
& G. Ry. Co. V. Markens, 88 Ga. GO, 13 S. E. 855; Little Rock & M. R. Co. v.
Harrell, 58 Ark. 454, 25 S. W. 117; Bunting v. Hogsett, 139 Pa. St. 363-375, 21
Ati. 31, 33, 34; Becke v. Missouri Pac. Ry. Co., 102 Mo. 5i4, 13 S. W. 1053;
Garteiser v. Galveston, H. & S. A. Ry. Co., 2 Tex. Civ. App. 230, 21 S. W. 631
(hand car).

600 Thus, a livery stable koei)er is liable for his driver's negligence, but
if the hirer directs or perhaps duly sanctions rash or careless acts, as by
forcing a coach through a crowd, he is liable. McLaughlin v. Pryor, 4 Man.
& G. 48; Holmes v. Mather, L. R. 10 Kxch. 261.

700 tiniou Pac. R, Co. v. Lapsley, 2 C. C. A. 149, 51 Fed. 174 (a leading
case), and cases cited at page 178, 51 Fed., and page 149, 2 C. C. A.; Phil-
adelphia, W. & B. R. Co. v. llogeland, (>(> Md. 149, 7 Atl. 105, followed in
Baltimore & O. R. Co. v. State (Md.) 29 Atl. 518; Metropolitan St Ry. v.
Powell. 89 Ga. 601, 16 S. E. 118; Alabama & V. R. Co. v. Davis, 69 Miss.
444, 13 South. 693; Follman v. City of Mankato, 35 Minn. 522, 29 N. W.
317; Board of Corners of Boone Co. v. Mutchler, 137 Tnd. 140, 36 N. E. 534.
But see Whittaker v. City of Helena, 14 Mont. 124, 35 Pac. 904; Johnson v.
Gulf, C. & S. F. Ry. Co.. 2 Tex. Civ. App. 139, 21 S. W. 274.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 983

there is some difference of opinion on the subject, arising in part
from peculiarities of the statutory status of husband and wife,^"*
it is generally regarded that the negligence of either in driving is
not necessarily to be attributed to the other.^®* The original Eng-
lish doctiine of imputing the negligence of the person in charge of a
vehicle or conveyance on which a person may be riding is generally
rejected in America. "^^^^

701 Toledo, St. L. & K. C. R. Co. v. Critteuden, 42 111. App. 409; Lake Shore
&M. S. R. Co. V. MiUer, 25 Mich. 274 (a level crossing case); Louisville, N.
A. & C. Ry. Co. V. Creek, 130 Ind. 139, 29 N. E. 4S1. And see McCullough
V. Railroad Co., 101 Mich. 234, 59 N. W. 618.

702 Honey v. Chicago, B. & Q. Ry. Co., 59 Fed. 423 (per Shiras, J.). Here
It was held that, to render the contributory negligence of a wife 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. Et vide Chicago, St L. & P. R. Co. v. Spllker, 134 Ind. 380,
33 N. E. 280, and 34 N. E. 218. The negligence of a husband who Is driving
his wife over a railroad crossing, where she Is Injured, cannot be lmpute<l
to the wife. Lake Shore & M. S. Ry. Co. v. Mcintosh (Ind. Sup.) 38 N. B. 470.

708 New York, L. E. & W. R. Co. v. Stelnbrenner, 47 N. J. Law, 161; Robin-
son V. New York Cent. & H. R. R. Co., 66 N. Y. 11; Noyes v. Boscawen, 64
N. H. 361, 10 Atl. 690; State v. Boston & M. R. Co., 80 Me. 430, 15 Atl. 36;
Nesbit V. Town of Garner, 75 Iowa, 314, 39 N. W. 516; Philadelphia, W. & B.
R. Co. V. Hogeland, 66 Md. 149, 7 Atl. 105; St. Clair St. Ry. Co. v. Eadle, 43
Ohio St. 91, 1 N. E. 519; Brickell v. New York Cent. & H. R. R. Co., 120 N. Y.
290, 24 N. E. 449; Randolph v. O'Rlordon, 155 Mass. 331, 29 N. E. 583; Ben-
nett V. New York Cent. & H. R. R. Co., laS N. Y. 563, 30 N. E. 1149; CahiU
V. Cincinnati, N. O. & T. P. Ry. Co., 92 Ky. 345, 18 S. W. 2; Darling v. Passa-
dumkeag Log Driving Co., 85 Me. 221, 27 Atl. 1(H); Elyton Land Co. v. Mln-
gea, 89 Ala. 521, 7 South. 666 (a fireman on an overturned hose cart). In Wis-
consin, however, the driver of a private conveyanc-e Is the agent of the iierson
in such conveyance, so that his contributory negligence will defeat his action.
Houfe V. Town of Pulton, 29 Wis. 296; Prideaux v. City of Mineral Point, 4:i
Wis. 513. In Michigan the same ruling has boon followed. Lake Shore & M.
S. R. Co. V. Miller, 25 Mich. 274; Mullen v. City of Owosso, 100 Mich. 103, 58
N. W. 663. Whore a person was killed while In a wagon crossing a railroad
track, negligence on the part of the driver of the wa;;on Is Imputable to de-
ceased, who was blind, and unable to take cai'e of himself, and who, of his
own volition, confided himself to the care of such driver, his father. Johnson
V. Gulf, C..& S. F. Ry. Co., 2 Tex. Civ. App. 494, 21 S. W. 274. The con-
tributory negligence of a grlpman under the control of a conductor will not
be Imputed to the latter. Minister v. Citizens* Ry. Co., 53 Mo. App. 276.

i^tS4 NEGLIGENCE. [Ch. 12

277. While the doctrine that the neg^lig^ence of the custo-
dian of a child of such tender years as to be non
sui juris is imputed to it so far as to bar the cause
of action for damages caused by the negligence of
another is recognized, such doctrine w^ould seem to
be opposed alike to the -w^eight of reasoning and
of authority.^"

The doctrine of identification has been carried so far beyond the
limits of Thoroj^ood v. Bryan as to take away from a child non sui
juris the right to recover damages suffered by it in consequence of
anotlier's negligence. In England, Waite v. Northeastern Ry. Co.^®*^
is supposed to be authority for the proposition that "they have suc-
ceeded in performing the dialectical feat- of identifying a child with
its grandmother." In this case a child of five years was taken to
a railroad station by its grandmother. The ground of decision was
that "the contract of conveyance is on the implied condition that
the child is to be conveyed subject to due and proper care on the
{>art of the person having it in charge." The needful foundation
of liability is wanting in this case, viz. that the defendant's negli-
gence, and not something else, for which he is not answerable, and
which he had no reason to anticipate, should be the proximate
cause.^^® No English decision goes to the length of depriving the
child of redress on the ground that a third person's negligence al-
lowed it to go alone.^®^ In America, however, the doctrine has
been frequently recognized ^**^ since its first enunciation ^®* in Hat-

704 1 Shear. & R. Neg. (4th Ed.) § 75; Whart Neg. § 311; 2 Wood, Ry. Law,
322.

7 05 EL, Bl. & El. 719.

7oe Pol. Torts, 382.

707 Pol. Torts, ;i«3, where it was said of Mangan v. Atterton, L. R. 1 Exch.
239: "We think it not law." But see Child v. Ilearn, L. R. 9 Exch. 17C.

70 8 Hartfield v. Roper, 21 Wend. (N. Y.) 615; Meeks v. Southern Pac. R. Co.,
r>2 Cal. (502; Toledo, W. & W. R. Co. v. Grable, 88 111. 441; Pittsburgh, Pt
W. & C. R. Co. V. Vining's Adm*r, 27 Ind. 513; Hathaway v. Toledo, W.

7 00 Beasley, J., in Newman v. Fhlllipsburg Horse-Car R. Co., 52 N. J. Law,
446, 19 AtL 1102.

Ch. 12] CXJNTKIBUTORY NEGLIGENCE. 985

field V. Rofer & Newell."^® Thus, where two children, aged respec-
tively seven and f ouHeen years, undertook to cross a railroad track,
the negligence of th(* attendant was not attributed to the older
child, and her conduct was considered with respect to the capacity
and discretion which at her age she was presumed to possess. **The
wholly irresponsible infant has imputed to it without limit or quali-
fication the conduct of the pai^ent or other person standing in loco
parentis, but this is not the rule of reason or of law in the case of
the child which has arrived at an age where capacity and discretion
are presumed.*' ^^^ The "reasons and considerations are (1) the
mutuality of the wrong entitling each party alike, when both are
injured, to his action against the other, if it entitles either; (2) the
impolicy of allowing a party to recover for his own wrong; and (3)
the policy of making peraonal interest of parties dependent on their
own prudence and care." ^^^ But to disentitle an infant to recover,
the contributory act must be negligent. While the negligence of a
parent in allowing a child non sui juris to go unattended on the
street may be a bar to the recovery by such child for damages, this
is not true if, while so unattended, the child does nothing which
would be deemed dangerous or lacking in due care, provided its
movements had been duected by an adult person of reasonable and

& W. R. Co., 46 Ind. 25; Lafayette & I. R. Co. v. Huffman, 28 Ind. 287;
Fitzgerald v. St Paul, M. & M. R. Co., 29 Minn. 33G, 13 N. W. 168; Wriglit
v. Maiden & M. R. Co., 4 Allen (Mass.) 283; Stillsou v. Hannibal & St. J.
R. Co., 67 Mo. 671; Flynn v. Hatton, 4 Daly (N. Y.) 552, 43 How. Prac.
(N. y.) 333; Mangam v. Brooklyn R. Co., 38 N. Y. 455; Cauley v. Pittsburgh,
C. & St. L. Ry. Co., 95 Pa. St. 398; Dudley v. Westcott (Com. PI.) 18 N. Y. Supp.
130, ovemiUng 15 N. Y. Supp. 952; Foley v. New fork Cent. & H. R. R. Co.,
78 Hun, 248, 28 N. Y. Supp. 816; Mattise v. Consumers* Ice Manuf'g Co., 46
La. Ann. 1535, 16 South. 400 (dangerous boiler).

710 21 Wend. (N. Y.) 615.

Til Louisville, N. O. & T. Ry. Co. v. Hlrsch, 69 Miss. 126, 13 South. 244.
Where one is intrusted by a father with the care of his minor son, and, by
reason of his gross negligence, the son is killed, such negligence is imputable
to the father, but not to the mother. Atlanta & C. Air-Line Ry. Co. v. Gravitt,
03 Ga. 369, 20 S. E. 550; RaUway Co. v. WUcox, 27 N. E. 899, 138 111. 370;
City of Pekin v. McMahon, 154 in. 141, 39 N. E. 484.

T12 Welch, J., in Belh-fontaine & I. R. Co. v. Snyder, 18 Ohio St 399, 408,
409. And see Glassey v. Hestonville Ry. Co., 57 Pa. St 172.

988 NEGLIGENCE. [Ch. 12

278. Where the action is by the parent for the loss of serv-
ice caused by an injury to the child, the contribu-
tory negligence of the plaintiff is a good defense/^

Parents of children of tender years must exercise care with ref-
erence to the tender years and discretion of the child, to the family
exigencies, and to known dangers, or dangers that might be known
by the exercise of ordinary diligence. The care of the custodian
of children has reference alike to the tender age of the child and to
any defect in its faculties.^ ^^ The parent is not necessarily negli-
gent in allowing the child to go in company of another, personally
capable of caring for it, near a concealed danger unknown to
both.^^® Domestic exigencies, as the sickness of the mother,^*^ or
her exhausted condition,^"^ are proper matters for consideration.
Thus, where a sick mother sends her boy across the street on a nec-
<^ssary errand, such act is not necessarily contributory negligence.'^ *•

T18 Erie City Pass. Ry. Co. v. Schuster, 113 Pa. St. 412, 6 Atl. 269; Smith
V. Railway Co., 1)2 Pa. St. 450; Albertson v. Keokuk & D. M. Ry. Co., 48
Iowa, 292; Pratt Coal & Irou Co. v. Brawley, 83 Ala. 371, 3 South. 555;
Evansville & C. Ry. Co. v. Wolf, 59 Ind. 89; Huff v. Ames, 16 Neb. 139,
19 N. W. G23; Beach, Contrib. Seg. 44; 1 Shear. & R. Neg. 71; SlatteiT v.
O'Connell (Mass.) 2(5 N. E. 430.

7i» It is not contributory negligence to allow an epileptic *child of 14 to
be at large unattended. Platte & D. Canal & MiUing Co. v. Dowell, 17 Colo.
37G, 30 Pac. 68. But the jmy is generally called upon to determine the
-contributory negligence of allowing a defective child to go at large unat-
tended. Lynch v. Metropolitan St. Ry. Co., 112 Mo. 420, 20 S. W. 642.

T20 Union Pac. R. Co. t. McDonald, 152 U. S. 262, 14 Sup. Ct. 619.

T21 Citizens' St. R. Co. of Indianapolis v. Stoddard. 10 Ind. App. 278, 37
N. E. 723; McMahon v. Northern Cent. Ry. Co., 39 Md. 438; Atchison, T.
A S. F. R. Co. V. Calvert, 52 Kan. 547, 34 Pac. 978; WisweU v. Doyle, 100
Mass. 42, 35 N. E. 107.

7 22 Slattery v. O'Connell, 153 Mass. 94. 26 N. E. 430. Et vide Rosenkranz
V. Lindell Ry. Co., 108 Mo. 9, 18 S. W. 890; Gundereon v. Northwestern
Elevator Co., 47 Minn. 101, 49 N. W. 694; Avey v. Galveston, H. & S. A.
Ry. Co. (Tex. Sup.) 17 S. W. 31. So an escape through a door left open
for a few moments Is not necessarily contributory negligence on the mother's
part. Weissner v. St. Paul City Ry. Co., 47 Minn. 468, 50 N. W. 606. Et
vide Strutzel v. St. Paul City Ry. Co., 47 Minn. 543, 50 N. W. 690; City of
St. Paul V. Kuby, 8 Minn. 154 (Gil. 125).

723 Cases cited in preceding note.

Ch. 12] CONTRIBUTORY NEGLIGENCE. 989

The care that is to be exercised has reference to dangers customary
in the given place,^^* and to other dangers known, or which ought to
be known. But the parent is bound to exercise care with refer-
ence to circumstances, and is not bound to anticipate carelessness
on the part of others. And if the defendant, in the exercise* of
ordinary care, could have averted the parent's negligence, the infant
or his representative may mcover.^^** The question of the negli-
gence of parents is ordinarily for the jury; not for the court.^*^ If,
however, the danger of the child could have been discovered by the
defendant in time to avoid injury to it by the exercise of ordinary
care, neither the parent's nor the child's right to recover is barred
by this alleged contributory negligence in allowing it to be at large
unattended.^ ^® Thus it is contributory negligence for a mother not
to recognize her own child sitting on a track in full view.'*'

724 AppHed to jars custoDiary in coupling cars. De Maliy v. Morgan's L.
& T. R. R. & S. S. Co., 45 La. Ann. 1320, 14 South. Gl.

T26 LoulsviUe, N. A. & C. R. (Jo. v. Shanks, 132 Ind. 395, 31 N. E, 1111.
Citizens' St. Ry. Co. v. Stoddard, 10 Ind. App. 278. 37 N. E. 723. Ante, p.
W3, contributory negligence of the parent us a bar to action lor injury
to a child.

727 Creed v. Kendall, 156 Mass. 201. 31 N. E. 6; Baker v. Flint & P. M.
Ry. Co., 91 Mich. 298, 51 N. W. 897; Tobln v. Missouri Pac. Ry. Co. (Mo.
Sup.) 18 S. W. 996; Meagher v. Cooperstown & C. V. R. Co., 75 Hun, 455,
27 N. Y. Supp. 504; Iluerzeler v. Ceutml Cross Town R. Co., 139 N. Y.
490. 34 N. E. 1101; Lederman v. Pennsylvania R. Co., 165 Pa. St 118, 30
Atl. 725.

728 Gunn V. Ohio River R. Co., 36 W. Va. 165, 14 S. E. 465; Id.. 37 W.
Va. 421, 16 S. E. 628; Baltimore C. P. Ry. Co. v. McDonnell, 43 Md. 534;
McEJnerj', .J., dissents In McGulre v. Vieksburg, S. & P. R. Co., 46 La.
Ann. 1543, 16 South. 457. Where a driver of a car, after discovering :i
ehUd on the track, notwithstanding that he had ample time and opportunity
to avert an accident, injured the child, the latter's negligence in being on
the track would not prevent its recovery. Huerzeler v. Central Cross Town
R. Co., 1 Misc. Rep. 136, 20 N. Y. Supp. 676.

T29 Johnson v. Reading City Pass. Ry. Co., 160 Pa, St. 647, 28 Atl. 1001.
Bt vide Grant v. City of Fitchburg, 1(50 Mass. 16, 35 N. E. 84; Alabnraa G.
S. R. Co. V. Dobbs, 101 Ala. 219. 12 South. 770.

yyO MASTER AND SERVANT. [Ch. 13

CHAPTEB XnL

MASTER AND SERVANT.

279. Master^B Duties to Servant

280. Master not an Insurer.
281-282. Assumption of Risk by Servant

283. Ordinary Risks.

284. Extraordinary Risks.

285. Exceptions.

28G-287. Risk of Fellow Senants.
288-289. Vice Principals.

290-291. Concurrent Negligence of Master.

292. Statutory Provisions.

MASTEB'S DUTIES TO SEBVANT.

279. A master owes to his servant certain inalienable,
nonassignable duties peculiar to the relationship,
based in general upon the duty not to expose him
to unnecessary or unreasonable risks. The servant
has a right to assume that his employer has per-
formed these duties.^ They consist in the exercise
of reasonable care with reference to —
(a) Providing and maintaining suitable appliances, ma-
chinery, and places to work.

1 This will be found discussed in. the text under the various specific duties
of the master. For example, the servant may rely on the presumption that
the master will furnish safe machinery, and, in the absence of notice, actual
or constructive, Is under no primary obligation to investigate and test. Chi-
cago & E. I. R. Co. V. Hhies, 132 III. IGl, 23 N. E. 1021. Et vide Chicago &
E. R. Co. V. Branyan (Ind. App.) 37 N. E. 190; Richland's Iron Co. v. El-
kius, 90 Va. 249, 17 S. E. 890; Pringle v. Chicago, R. I. & P. Ry. Co., (U Iowa,
613-616. 21 N. W. 108; Rigdon v. Alleghany Lumber Co., o9 Hun, 627, 13 N.
Y. Supp. 871; Helm v. O'Rourke, 46 La. Ann. 178, 15 South. 400; Grannis v.
Chicago, St. P. & K. C. Ry. Co., 81 Iowa, 444, 46 N. W. 1067; Evans v. Cham-
berlain, 40 S. C. lOi, 18 S. E. 213; Banks v. Wabash Ry. Co., 40 Mo. App. 458;
Beard's Adm'r v. Chesapeake & O. R. Co., 90 Va. 351, 18 S. B. 559; Ohio &
M. Ry. Co. V. Pearcy, 128 Ind. 197. 27 N. E. 479; Heltonville Manuf'g Co. v.

Ch. 13] master's duties to servant. 991

(b) Providing proper fellow servants in sufBlcient num-

ber.

(c) Making and promulgating rules for the regulation of

servants and giving -warning and instruction
especially to youthful and inexperienced em-
ployeSy with reference to danger, w^hether —

(1) Naturally incident to the employment, or

(2) Arising from causes extraneous to it.

(d) Inspecting appliances, machinery, and places to work,

supervising fellow servants, and securing the
observance of rules.'

Duties are Peculiar to the Edationifhtp.

The liability of the master to his servant is governed by the or-
dinary principles of tort. The burden is on the servant to show a
breach of duty by the master.' The law presumes that the master
has done his duty. These peculiar duties apply only when the re-
lation of the master and servant exist.* Therefore, ordinarily a
mere volunteer assisting a servant cannot recover. If he is injured
by the negligence of the servant, he can have no recourse against
the master. '^ The assent of the master, however, may be implied
to the act of a volunteer in rendering prudent and reasonable assist-

Fields (Ind. Sup.) 36 N. E. 529; Chicago & E. R. Co. v. Branyan (Iiid. App.)
37 N. B. 190; Houston v. Brush, 66 Vt 331, 29 Atl. 380; post, p. 1003, note 55.

3 In 24 Am. Law Rev. 184, wiU be found an interesting article on this gen-
eral subject by the Honorable J. F. Dillon; and in a note to White v. Ken-
noD, 39 Am. & Eng. Ry. Cas. 332 (Ga.; 9 S. E. 1082), wm be found a collection
of cases on various points. And see Watts v. Hart & T. B. Ry. Co., 59 Am. &
Eng. Ry. Cas. 399 (Wash., 34 Pac. 423).

8 Wood, Mast. & S. §§ 382, 419.

4 A wife living with her husband is not liable for injuries to a domestic
servant who, at her request, went to a loft on the husband's premises, and
was injured because the ladder to the loft was not suitable for the pui^pose.
Steinhauser v. Spraul (Mo. Sup.) 28 S. W. 620. A collection of authorities
as to who are employes of a railroad company, 59 Am. & Eng. Ry. Cas. 120,
125 (Pa. Sup., 25 Atl. 497).

8 Flower v. Pennsylvania R. Co., 69 Pa. St. 210; New Orleans, J. & G. N.
R. Co. V. Harrison, 48 Miss. 112; Osborne v. Knox & L. R. Co., 68 Me. 49;
Mayton v. Texas & P. R. Co., 03 Tex. 77; Mclntlre St. Ry. Co. v. Bolton,
43 Ohio St. 224, 1 N. E. 333; Eason v. RaUroad Co., 65 Tex. 577; Degg v. Mid-

992 IIASTEB AND SERVANT. £Ch. !'>

ance in the master's Imsinefts in accordanr** with the actual or im-
plied requef^ts of his w»rvaiits.* Convei-sely, the fact that the dam-
age done to a serrant wa« caused hy a Htranjrer or a Tolonteer, will
not excune a master who was guilty of a breach of duty to the serv-
ant. The master is bound to exercise due care for the safetv of
his employ^; and, if he fails to do so, his wrong is the legal cause,
notwithstanding the intervention of some unauthorized actor.^ A
substitute hired by an employ^ stands in the employe's place, ^^ith
all of his responsibilities and liabilities, so far as the master is con-
cerned; and a fellow servant with the employ^ is a fellow servant
with the substitute, though no contractual relation exists between
the substitute and the master, and though the employ^ alone is re-
sponsible for the substitute's wages.* The master owes peculiar
duties to the servant only when the servant is in his employ and
doing his work. At other times he owes him tlie same duty he
owes to a third person in a corresponding situation. Whether the
servant when injured was acting within the scope of his employ-
ment and on the line of his duty, or as a mere stranger, is ordinarily
a question of fact for the jury.*

Tlie hours of labor afford a material test of when the given in-
dividual is engaged in the service of his master. When, however,
the master provides trains in which the servant rides in coming and
going to his work, the servant is in his employ while riding on such
trains, and, as such servant, is entitled to the i)erformance of du-
ties due a servant by a master, and is limited in his right to recover

land Ry. Co., 1 Hurl. & N. 773; Potter T. Faulker. 1 Best. & S. 800. But
see Cleveland v. Spier, U\ (\ B. <N. S.i 3ilD; Althrof v. Wolfe. 22 N. Y. 355.

« Melntire St Ry. Co. v. B*»lTon, 43 Uliu> St 221. 1 N. E. 333; Marks v. Roch-
ester Uy. Co., 77 Hun, 77. 28 N. Y. Supp. 314; Eason v. Railroad Co., ^ Tex.
577; Wright v. Railway Co.. 1 Q. B. Div, 2."i2; Holmes v. Nnrtheastero Ry,
Co., L. R. 4 Kxth. 2r4.

7 Southern Tac. R. Co. v. I^ifferty. 6 C. C. A. 474. Tu Fe«l. .=w>J.

8 Amlerson v. Guineau, 9 Wa.*«h, 304. 37 Pac. 44i».

» 3Iullin v. Northern Mill Co., 5:t Minn. 29, 55 X. W. 1115: Walbort v. Trex-
ler. 15« Pa. St. 112, 27 Atl. «V>. Where a servant was injunnl by bein« caught
in a set screw which projected a little beyond the pulleys and belt, hot was
almoi^t in tl.cir line of motion, the fact that he was not told alH>ut the set
screw does n<»t nink<» tlie master liable, when the servant knew that the pul-
leys, belt, and shaft were dangerous. Rooney v. Sewall & Day Cordage Co..
IGl Mass. 153. 36 N. £. 78d.

Ch. 13] master's duties to sehvant. 993

by limitations peculiar to the relationship and by the doctrine of
fellow servant.*®

Providing Appliances.

The employer is bound, at least, to exercise reasonable care to
furnish his employes with appliances and machinery suitable to
carry on the employment, having reference to its character, the state
of the art which it involves, and statutory requirements. Thus, a
railroad company must exercise care to furnish a reasonably, but not
absolutely, safe roadbed and tracks," switches," hand cars,** cars,**

10 See ante. 280, "Master and Servant"

11 Budlct V. Missouri Pao. Ry. Co., 123 Mo. 221, 27 S. W. 453; Swadley
V. Missouri Pac. Ry. Co.. 118 Mo. 208, 24 S. W. 140; Drymala v. Thompson,
26 Minn. 40, 1 N. W. 255; Ford v. Cliica^o, R. I. & P. Ry. (Iowa) 59 N. W.
5 (cattle guard); Murphy v. Wabash R. Co., 115 Mo. Ill, 21 R. W. 862; Ragon
V. Toledo, A. A. & N. M. Ry. Co., 97 Mich. 265, 56 N. W. 612 (ballast); Tuttle
V. Detroit, G. H. & M. R. Co., 122 U. S. 189, 7 Sup. Ct. 1166 (sharp curve);
St. Louis, I. M. & S. Ry. Co. v. Robblns, 57 Ark. 377, 21 S. W. 886 (switch en-
gine); Kansas City, M. & B. R. Co. v. Webb, 97 Ala. 157, 11 South. 888
(track under statute); Kansas City, M. & B. R. Co. v. Buitou, 07 Ala. 240,
12 South. 88. And see cases 59 Am. & Eng. Ry. Cas. 209.

12 Birmingham RaUway & Electric Co. v. Allen, 99 Ala. 350, 13 South. 8;
Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Hoosier
Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956.

i» Northern Pac. R. Co. v. Ch^rless, 2 C. C. A. 380. 51 Fed. 562 (defective
brake); Anderson v. Minnesota & N. W R. Co., 30 Minn. 523, 41 N. W. 104.
But an engineer In temporary charge of a train, in the absence of any con-
ductor, cannot waive a rule, well known to a brakeman, absolutely prohibit-
ing brakemen from coupling and uncoupling cars except with a stick, by
ordering such brakeman to go between cars, and place in position, by hand,
a bent coupling link, which cannot be controlled with coupling sticks. Fin-
ley V. Richmond & D. R. Co., 59 P'ed. 420, reversed. Richmond & D. R. Co.
v. Finley, 12 C. C. A. 595, 63 Fed. 228.

1* I^ Clair V. Fii-st Division St. P. & P. R. Co., 20 Minn. 9 (Gil. 1); Salem
Stone & Lime Co. v. Griffin (Ind. Sup.) 38 N. E. 411; Chicago. R. I. & P. Ry.
Co. V. Linney, 7 C. C. A. 656, 59 Fed. 45 (coupling); Texas & P. Ry. Co. v.
Robertson, 82 Tex. 657, 17 S. W. 1041 (defective brake beam); Eddy v. Pren-
tice (Tex. Civ. App.) 27 S. W. 1063; Graham v. Boston & A. R. Co., 156 Mass.
4, 30 N. B. 359 (absence of handle in coupling); Dooner v. Delaware & H. Ca-
nal Co. (Pa. Sup.) 30 Atl. 269 (customary handles, ladders, and safeguards);
Rodney v. St. Louis & S. W. Ry. Co. (Mo. Sup.) 28 S. W. 887 (defective draw-
head); Chicago & £. I. K. Co. v. Kneirim (111. Sup.) 39 N. E. 324 (brake wheel).

LAW OF TORTS— 68

994 MASTER AND SERVANT. [Ch. 13

engines," bridges," and other instrumentalities." Failure to exer-
cise care so to equip its road and roadbed is negligence.

But knowledge by a master of the defective condition of machin-
ery does not make him liable for injuries resulting therefrom to one
of his servants, unless he had a reasonable opportunity, after ac-
quiring such knowledge, to remedy the defect,** and no action will
lie against a master for damages caused by a defective tool where
the employ^ injured could have obtained a proper one at any or
within a reasonable time."

The rule applies alike to animate and inanimate instrumentali-

18 Texas & P. Ry. Co. v. Patton, 9 C. C. A. 487, 61 Fed. 259.

i« Conlon V. Oregon S. L. & U. N. Ry. CJo., 23 Or. 499, 32 Pac. 397. Over-
head bridge: Cleveland, C, C. & St. L. R. Co. v. Walter, 147 111. 60, 36 N.
E. 529; Pennsylvania Co. v. Sears, 136 Ind. 4G0, 34 N. E. 15; Galveston, H.
& S. A. Ry. Co. V. Daniels (Tex. Civ. App.) 28 S. W. 711. But see Louisvme
& N. R. Co. V. Banks (Ala.) 10 South. 547.

17 And, generally, see 59 Am. & Eng. Ry. Cas. 150, 158, 173, 189, 197, 24a
SeaflPolding, Cadden v. American Steel-Barge Co., 88 Wis. 409, 60 N. W. 800.
And, generally, see Palnton v. Northern Cent. Ry. Co., 83 N. Y. 7; 0*Don-
nell V. Allegheny Valley R. Co., 59 Pa. St. 239; Philadelphia, W. & B. R. Co.
V. Keenan, 103 Pa. St. 124. As to negligence on part of the master with
respect to elevators, see Thompson v. Johnston Bros. Co., 86 Wis. 576, 57 N.
W. 298; Wise v. Ackerman, 76 Md. 375, 25 Atl. 424; McCormIck Harvesthig
Mach. Co. V. Burandt, 136 111. 170. 26 N. E. 588. Defective rope suspending
a tub filled with coal, Cunard S. S. Co. v. Carey, 119 U. S. 245, 7 Sup. Ot. 1360.
Negligent adjustment of discharging gear provided by the ship, Cameron v.
Nystrom [18931 1 App. Cas. 308.

18 Seaboard Manufg Co. v. Woodson, 98 Ala. 378, 11 South. 733.

10 Allen V. G. W. & F. Smith Iron Co., 160 Mass. 557, 36 N. E. 581; Carroll
v. Western Union Tel. Co., 160 Mass. 152, 35 N. E. 456. Compare Oellerich
V. Hayes, 8 Misc. Rep. 211, 28 N. Y. Supp. 579. Et vide East Tennessee,
V. & G. Ry. Co. V. Perkins, 88 Ga. 1, 13 S. E. 952; Birmingham Furnace &
>Ianuf'g Co. V. Gross, 97 Ala. 220, 12 South. 36. Where the blocks of wood
necessary for doing certain work can be picked up at any time around the
workshop, the failure of the master to specially furnish them does not ren-
der him liable for injuries to an employ^, caused by their nonuser. Hatha-
way V. Illinois Cent. Ry. Co. (Iowa) GO N. W. 651. Nor is the master liable
for failure of employes to use enough of appliances furnished. Applied to
light and torches, Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, 34 N. E.
901. Thyng v. Fltchburg R. R. (Mass.) 30 N. E. 169; Rawley v. CoUiau, 90
Mich. 31, 51 N. W. 350, following Hefferen v. Northern Pac. R. Co., 45 Minn.
471, 4S N. W. 1. 520. .

^h. 13] master's duties to servant. 995

ties. The employer may be liable for negligence in furnishing un-
fit or dangerous horses for his servant's use." The fact that the
employer may be using the appliances of a third person does not
exempt him from the performance of this duty. Therefore, M^ho-
ever uses a car may be liable for negligence if its defects result
in damage, although the car may have belonged to some one else.^^
The employer, however, is not bound to provide the best, safest,
or newest instruments, although he must discontinue insecure or
unsafe methods. ^^ On the one hand, he is not required to invest in

«o Hammond Co. v. Johnson, 38 Neb. 244, 56 N. W. 967; Martin v.
Wrought Iron Range Co., 4 Tex. Civ. App. 185, 23 S. W. 38T. Cf. Craven v.
Smith, 89 Wis. 119, 61 N. W. 317.

21 Ix)ulsville & N. R. Co. v. WiUiams, 95 Ky. 199, 24 S. W. 1; Spaulding v.
W. N. Flynt Granite Co., 159 Mass. 587, 34 N. B. 1134; Eddy v. Prentice (Tex.
Civ. App.) 27 S. W. 1063; Bowers v. Connecticut River R. Co., 162 Mass.
312, 38 N. E. 508; Dooner v. Delawai-e & H. Canal Co., 164 Ta. St. 17, 30 Atl.
269; Bennett v. Northern Pac. R. Co., 2 N. D. 112, 49 N. W. 408; Id. (N. D.)
61 N. W. 18; Fay v. Minneapolis & St. L. Ry. Co., 30 Minn. 231, 15 N. W.
241; Gulf, C. & S. F. Ry. Co. v. Dorsey, 66 Tex. 148, 18 S. W. 444. But
mere difference in style of coupling cars is not necessarily an actionable de-
fect, especially where can-lers are required by law to handle cars of other
companies. Thomas v. Missouri Pac. Ry. Co., 109 Mo. 187, 18 S. W. 980.
Et vide post, p. 1088. It has, however, been held that a master is not bound
to test the safety of such cars, but may assume it, unless the contrary ap-
pears. Ballou V. Chicago, M. & St. P. Ry. Co., 54 Wis. 257, 41 N. W. 559;
Michigan Cent R. Co. v. Smithson, 45 Mich. 212, 7 N. W. 791. A railroad
company is not responsible to its switchman for Injuries caused by defects
m a foreign car, if It has Inspected the car, and warned him of its defects.
Atchison, T. & S. F. R. Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793. And see
article by E. J. Marshall, 1 N. Y. L. Rev. 23. But see Kohn v McNiilta, 147
U. S. 238, 13 Sup. Ct. 298.

22 Washington & G. R. Co. v. McDade, 135 U. S. 554r^70, 10 Sup. Ct 1044;
Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N. B. 789; Harley
V. Buffalo Car Manuf'g Co., 142 N. Y. 31, 36 N. E. 813; Roughan v. Boston

46 L. Block Co., 161 Mass. 24, 36 N. E. 461; La Pierre v. Chicago & G. T. Ry.
Co., 99 Mich. 212, 58 N. W. 60; Schroeder v. Michigan Car Co., 56 Mich. 132,
22 N. W. 220; Walsh v. Whiteley, 21 Q. B. Div. 371, 378» 379; Sweeney v.
Berlin & J. Env. Co., 101 N. Y. 520-524, 5 N. E. 358; Steinhauser v. Spraul
(Mo. Sup.) 28 S. W. 620; Lyttle v. Chicago & W. M. Ry. Co., 84 Mich. 289,

47 N. W. 571. The testimony of experts is admissible. Richmond & D. R.
Oo. V. Jones, 92 Ala. 218, 9 South. 276. The jury determines the question.
Muirhead v. Hannibal & St. J. R. Co.. 103 Mo. 251, 15 S. W. 530; Gibson v.
Pacific Ry. Co., 46 Mo. 103.

996 MASTER AND SERVANT. LCh. IS

experiments. The utility of the device which it is insisted he shoald
have used must have been demonstrated before the law will require
him to use it. Thus, an electric street-car company is not bound
to use a reduction coil in its experimental stages.^* On the other
hand, the employer must exercise due care in introducing "untried
novelties." '*

The master is bound to comply with statutory requirements de-
signed for the safety of his employes. In many cases the statutes
are declaratory of common-law requirements for the protection of
servants. Thus, where, in the absence of statute, an unprotected
frog caused the accident, it was determined that the finding of neg-
ligence was sustained by evidence that devices (e. g. wooden blocks)
practicable, reasonable, adequate, and inexpensive, were known to
the railroad company for protection against such danger. It was
held bound to use devices for the protection of its employes known
to it or ascertainable by the use of proper diligence, intelligence,
and care.*" This common-law duty of blocking frogs is conmionly
subject to statutory enactment.**

Providing Safe Place for Work,

The general duty of the master to the servant requires him to
exercise reasonable care in seeing that the place where the servant
works is safe for the purpose; *^ and this duty extends not only to

28 Lorimer v. St. Paul City Ry. Co., 48 Minn. 391, 51 N. W. 125. In 9 Nat.
Corp. R. 143, will be found an article discussing the duty of a railroad com-
pany to adopt scientific appliances.

»* Applied to revolving sliaper head. Marshall v. Widdicomb Furniture
Co., 67 Mich. 167, 34 N. W. 541.

26 Sherman v. Chicago, M. & St. P. Ry. Co., 34 Minn. 159, 25 N. W. 503,
collecting cases. Cf. [Missouri Pac. R. Co. v. Baxter (Neb.) 60 N. W. 1044. '
But see Southern Pac. Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530; Sheets
V. Chicago & I. Coal Co. (Ind. Sup.) 39 N. E. 154.

26 llolum V. Chicago, M. & St. P. Ry. Co., 80 Wis. 299, 50 N. W. 99; Bohaii
V. St. Paul & D. R. Co., 49 Minn. 488, 52 N. W. 133. Statutory duty as to
elevator shaft, Dieboldt v. United States Baking Co., 81 Hun, 195, 30 N. Y.
Supp. 745. Props for roofs of mine. Victor Coal Co. v. Muir (Colo. Sup.) 38
Pac. 378; Consolidated Coal & M. Co. v. Clay's Adm'r (Ohio Sup.) 38 N. E.
610.

27 Fosburg V. Phillips Fuel Co. (Iowa) 61 N. W. 400. Cf. Collins v. Crlm-
mins (Super. N. Y.) 31 N. Y. Supp. 860. And see Bloudcn v. Oolite Quarry
Co. (Ind. App.) 37 N. E. 812, affirmed in 39 N. B. 200.

Ch. 13] master's duties to servakt. 997

such unnecesBary and unreasonable risks as are in fact known to
employer, but also to such as he ought to have known, in the exer-
cise of proper diligence. Therefore the jury must determine the
question of negligence of the master in allowing his servant to work
near the standing walls of a burnt elevator, where the walls, de-
signed to sustain direct, but not lateral, pressure, were in fact sub-
jected to lateral pressure, and, giving way, damaged the servant^*
The servant has a right to rely upon the perfonnance of the duty
of his master to protect him against the obvious hazard of the place
of his work. Thus, where a car repairer is engaged under a jacked-
up car, and an engine moves up the track and strikes the car, where-
by the servant is injured, the master is liable, although the act of
the engineer was in violation of rules.* • But a master is not bound
to provide a safe place, where the work on which the servant is
engaged is such as to render the place where it is done temporarily
insecure."®

The ca^e that is to be exercised has reference to the danger to
which the customary use of the place or appliances is likely to ex-
pose the servant. Where a brakeman, while descending' a ladder
on the side of a car, to open a switch, was struck by a section house
built near the track, evidence that brakemen customarily passed

28 rrendible v. Connecticut River Manuf' g Co., IGO Mass. 131, 35 N. E. 675
(platform and support); Denning v. Gould, 157 Mass. 5G8, 32 N. E. 862
(same) ; Cougle v. McKee, 151 Pa. St. 602. 25 Atl. 115 (same) ; Union Pac. R.
Co. V. Jarvi, 10 U. S. App. 439, 3 C. C. A. 433, 53 Fed. 65 (support in mine);
Llneoski v. Susquehanna Coal Co., 157 Pa. St. 153, 27 Atl. 577; Linton Coal-
Min. Co. V. Persons (Ind. App.) 39 N. E. 214 (roof of mine); Union Pac. Ry
V. Ericl^on, 41 Neb. 1, 59 N. W. 347 (coal thrown from locomotive tender).
Muncie Pulp Co. v. Jones (Ind. App.) 38 N. E. 547 Qarge bole covered b>
rotten canvas); Heunessy v. City of Boston. 161 Mass. 502, 37 N. E. 668; Nor-
folk & W. R. Co. v. Ward (Va.) 19 S. B. 849 (excavation). Cf. Victor Coal
Co. V. Muir (Ck)lo. Sup.) 38 Pac. 378.

a» St. Louis, A. & T. Ry. Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, and 16
S. W. 266; Cleveland, C, C. & St. L. Ry. Co. v. Brown, 6 C C. A. 142, 50
Fed. 804 (falling sbed); Fitzsimmons v. City of Taunton, 160 Mass. 223, 35
N. E. 549 (caving in of bank); Joliet Steel Co. v. Shields, 146 Bl. 603, 34 N. E.
1108 (falling of upright steel molds); Vanesse v. Catsburg Coal Co., 159 Pa. St.
403, 28 Atl. 200 (roof of mine) ; Consolidated Coal Co. v. Bruce, 47 Bl. App.
444 (same).

80 Gulf, C. & S. F. Ry. Co. v. Jackson, 12 C. C. A. 507, 65 Fed. 48.

998 MASTER AND SERVANT. [Ch. IS

down the sides of cars, while in motion, to open switches, was ad-
missible to prove that he was not negligent, and also that the com-
pany had located its stracture in an improper place.' ^ The master
however is not responsible where the place or appliances are put to
an uDusnal test,'* or to a use not anticipated."

Providing FcUow Servants.

The same degree of care which an employer should take in pro-
viding and maintaining its machinery, place, and appliances must
be observed in selecting and retaining its employes.'* The em-
ployer is not justified in subjecting his servant to injury from in-
competent,^* unskillful,'" drunken,'^ habitually negligent," or 6th-

81 Flanders v. Chicago, St. P., M. & O. Ry. Co., 51 Minn. 193, 53 N. W. 544.
The rule that one who attempts to cross a railroad track without looking
and listening, when, by so doing, he may discover the danger from an ap-
proaching train. Is guilty of negligence per se, does not apply to the case of
one who is employed In a railroad 3'ard, and whose duties frequently mak^
It necessary for him to go on the tracks. (Gllflllan, C. J., dissenting.) Jor-
dan V. Chicago, St P., M. & O. Ry. Co. (Minn.) 59 N. W. 633. Foster v. Mis-
souri Pac. R. Co., 115 Mo. 105, 21 S. W. 916; Goodes v. Boston & A. R. Co.,
162 Mass. 287, 38 N. E. 500; Ford v. Chicago, R. I. & P. R. Co. (Iowa) 59 N.
W. 5. Cf. Galvln v. Old Colony R. Co., 162 Mass. 53.S, 39 N. E. 186.

8 2 Preston v. Chicago & W. M. Ry. Co., 98 Mich. 128. 57 N. W. 31.

33 Richmond & D. R. Co. v. Dickey, 90 Ga. 491, 16 S. E. 212.

34 An extensive collection of authorities on the liability of a master for in-
juries caused to one servant by the incompetency of a fellow servant. 25
Lawy. Rep. Ann. 710.

3 5 Galveston, H. & S. A. Ry. Co. v. Arispe, 81 Tex. 517, 17 S. W. 47; St
I^uis, I. M. & S. Ry. Co. v. Hackett, 58 Ark. 381, 24 S. W. 881; Louisville, N.
A. & C. Ry. Co. V. Breedlove, 10 Ind. App. 657, 38 N. E. 357; Campbell & Zell

86 East Tennessee & W. N. C. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883.
In five or six years a fireman can graduate into an engineer. Roblin v.
Kansas City, St. J. & C. B. R. Co., 119 Mo. 476. 24 S. W. 1011.

8T Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860 (drunken en-
gineer). How often a servant can get drunk without making his master
legally aware of such habit is for the jui-y. Tonnesen v. Ross, 58 Hun, 415,
12 N. y. Supp. 150, 151. As to admissibility of general reputation for in-
temperance, see Norfolk & W. R. Co. v. Hoover (Md.) 29 Atl. 994; CJosgrove
V. Pitman, 103 Cal. 208, 37 Pac. 232; Stevens v. San Francisco & N. P. R.
Co., 100 Cal. 554, 35 Pac. 165.

88 See note 38 on following pa^je.

Ch. 13] master's duties to servant. 999

erwise unfit fellow servants,'* He is liable if he knew, or, in the
exercise of reasonable diligence, could have known, of such unfit-
ness, incompetency, intemperance, or insufficiency.*** He has the
right to rely upon the presumption that the servant will continue

Co. v. Roedlger, 78 Md. 601, 28 Atl. 901; Ohio & M. Ry. Co. v. Dunn (Ind.
Sup.) 36 N. E. 702; McGuerty v. ^ale. 101 Mass. 51. 30 X. E. 682; Hatha-
way V. lUlnois Cent Ry. Co. (Iowa) 60 N. W. (mI. Whether a master is
guilty of negligence in employing an incompetent servant is a question of
fact, not reviewable in the supreme court. Western Stone Co. v. Whalen,
151 111. 472, 38 N. E. 241. An expert may testify that a given person was not
a competent foreman. Bunnell v. St. Paul, M. & M. Ry. Co., 29 }ilinn. ^U).!,
13 N. W. 129. Evidence of speoiflt acts of negligence are inadmissible to
show that a servant was incompetent. Kennedy v. Spring, 100 Mass. 203,
35 N. B. 779; Connors v. Morton, 100 Mass. 3:J3, 35 N. E. 860. The fact that
the engineer of a hoisting engine, whose negligence in mishoistlng the cage
caused the death of a miner, had once before made a mishoist, would not
make the owner liable for such death, unless he had notice of It. Mulhem v.
Lehigh Val. Coal Co., 161 Pa. St. 270, 28 Atl. 1087; O'Boyle v. Lehigh Val.
Coal Co., 101 Pa. St. 270, 28 Atl. 1088. Compare Norfolk & W. R. Co. v.
Thomas' Adm*r, 17 S. E. 884, and Lebbering v. Struthers, 157 Pa. St. 312.

27 Atl. 720, with Timm v. Michigan Cent. R. Co., 98 Mich. 226, 57 N. W. IKi;
Mayor, etc., of Baltimore v. War, 77 Md. 593, 27 Atl. 85.

8 8 Where there was evidence that plaintiff, a freight conductor, was injured
without fault on his part, and whoUy from the negligence of a flagman, who
was habitually careless, and whose unfitness for the iH)sition was known to
the defendant long enough before the accident to enable it to procure some
one else, the liability of defendant Is a question for the Jury. Hughes v. Bal-
timore & O. K. Co., 104 Pa. St. 178, 30 Atl. 383. AVhere an injury has occurred
through the negligence of a servant, evidence that he was generally known
to be unfit, reckless, or unskillful is competent to show that the master was
negligent in employing him. (51 111. App. 512, aflirmed.) Western Stone Co.
V. Whalen, 151 111. 472, 38 N. E. 241.

t»A one-armed watchm.nn is not a fit brakeman. Louisville & N. R. Co.
V. Davis, 91 Ala. 487, 8 South. 552. Whether a boy was a proper person to
work on a machine is not a proper question for an expert. McGuerty v.
Hale, 161 Mass. 51. 30 N. E. 082.

40 Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 500. As to
what is notice of incompetency, I^atremouille v. Bennington & 11. Ry. Co.,
63 Vt. 636, 22 Atl. 650; Cameron v. New York Cent. & H. R. R. Co., 77 Hun, 51'J,

28 N. Y. Supp. 898; Mulhem v. Lehigh Valley Coal Co., 161 Pa. St. 270, 28
Atl. 1087; Craig v. Chicago & A. R. Co., 54 Mo. App. 523; St. I^uis, A. &
T. II. R. Co. V. Corgan, 49 111. App. 229 (Crazy Pete). Knowledge by a
chief train dispatcher of tlie incompetency of a station agent and telegraph

1000 MASTER AND SERVANT. [Ch. 13

•careful and skillful, and^ when notified that he has become careless,
he is ordinarily not bound to discharge him wrthout an investiga-
tion into the charge, unless notice is accompanied by such evidence
4is leaves no reasonable doubt of the truth of the charge. A rule
that would require the master to discharge a servant, careful and
competent when employed, without an investigation of a charge of
carelessness, would be a hard one, and would often result in great
injustice to employc^*^ The employer may be negligent in supply-
ing an insufficient force of workmen.* ^ Thus, it is the duty of a
railroad company to take reasonable precautions to prevent its en-
gines being tampered with or moved while in a yard and unused;
and whether the employment of one person to take care of the en-
gines and to act as watchman was such reasonable precaution, the
jury must determine. If an engine be left with fire up, and water
in the boiler, the railroad company cannot excuse itself to an em-
ploy^ damaged because of the engine's unexpected motion by say-
ing that it would not have started, except for the unauthorized in-
terference of a stranger. It is required to exercise due care to pre-
Acnt such interference.*'

operator employed by the same company, but without authority on the
part of the dispatcher to hire or dischar^ife sucli servants, cannot be ira-
pute<l to the company. Lewis v. Seifert, IIG Pa. St. 628, 11 Atl. 514, distin-
guished in Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175.

*i Cliapman v. Erie R. Co., 55 N. Y. 571); Moss v. Pacific R. Co., 49 Mo.
167; BlaJte v. Maine Cent. R. Co., 70 Me. 00; Lake Shore & M. S. R. Co.
V. Stupak, 123 Ind. 210-230, 23 N. E. 246.

4 2 Harvey v. New York Cent. & H. R. R. Co., 57 Hun, 589, 10 N. Y. Supp.
r45. Cf. Georgia I»ac. Ry. Co. v. Propst, 90 Ala. 1, 7 South. 635; Reichel
V. New YorK Cent. & II. R. R. Co., 130 N. Y. 682, 29 N. B. 763; Relyea v.
Kansas City, Ft. S. & G. Ry. Co. (Mo. Sup.) 19 S. W. 1116. If he simply
use the usual number of crew sufficient for ordinary occasions, there is no
negligence. Relyea v. Kansas City, Ft. S. & G. R. Co., 112 Mo. 86, 20 S.
W. 480. And see Alberts v. Bache, 69 Ilun, 255, 23 N. Y. Supp. 502. Proof
of negligence as to insufficient force is not admissible under allegation of
incompetency. Parrish v. Pensacola & A. Ry. Co., 28 Fla. 251, 9 South. 696.
Testimony of expert is admissible to show whether one brakeman was suf-
ficient to control speed of gravel train. Union Pac. Ry. Co. v. Novak, 9
( '. C. A. 629, 61 Fed. 573.

4 3 Southern Pac. Ry. Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. 536.

Ch. 13] master's duties to servant. 1001

Rvles.

The employer is bound to make and promulgate general rules for
the conduct of employes exposed to danger whenever the nature of
the work demands it.** If he fails to do so, he will be liable for
damage consequent upon such negligence.** If he had made them,
and they are violated, he may still be responsible.*" The servant
has a right to rely upon the obedience to such rules on the part of
other employes. Thus, workmen engaged in track repairing are not
bound to keep out of the way of moving trains, unless the required
signals are given. If the trainmen give the proper signals, they
may then go ahead; but, if they discover that their warning was
unheeded, they must try to stop the train. If the rules of the com-
pany do not require such signals, this is neglect of duty.*^ How-

44 Lake Shore & M. S. Ry. Co. v. LavaUey, 36 Ohio St. 221; Pittsburg,
P. W. & C. Uy. Co. V. Powers, 74 lU. 341. And, g(merally, see Berrigan v.
New York, L. E. & W. R. Co., 131 N. Y. 582, 30 N. E. 57: Richmond & D.
R. Co. V. Williams. 88 Ga. 16, 14 S. B. 120; Abel v. President, etc., 128 N.
Y. 662, 28 N. E. 6(J3; Morgan v. Iron Co., 133 N. Y. 666, 31 N. E. 234;
Gordy v. Railroad Co., 75 Md. 297, 23 Atl. 607. The reasonableness of such
a rule is a question of law. -Kansas City, Ft. S. & M. Ry. Co. v. Hammond.
58 Ark. 324, 24 S. W. 723. The master must exercise such supervision aa
to have reason to believe that the business is conducted In pursuance to
such rule. Warn v. New York Cent. & H. R. R. Co., 80 Hun, 71, 29 N.
Y. Supp. 897. OJHcers are charged with notice of customary breach. Lowe
V. Railway Co. (Iowa) 56 N. W. 519. Cf. Richmond & D. R. Co. v. Hissong,
«7 Ala. 187. 13 South. 209, modifying 91 Ala. 514, 8 South. 776.

4s A valuable note on the duties of railroad companies to adopt and en-
force rules, and the effect of a failure of an employ6 to obey the same, 59
Am. & Eng. Ry. Cas. 574.

4« Northern Pac. R. Co. v. Nickels, 1 C. C. A. 625, 50 Fed. 718; Fay v.
Minneapolis & St. L. Ry. Co., 30 Minn. 234, 15 N. W. 241; Hayes v. Bush
A D. Manufg Co., 41 Hun, 407; Sprang v. New York Cent. R. Co., 58 N.
Y. 56.

4TErickson v. St. Paul & D. R. Co., 41 Minn. 500, 43 N. W. 332; Moran
V. Eastern Ry. Co., 48 Minn. 4(>, 50 N. W. 930; Schulz v. Railway Co.
<Minn.) 59 N. W. 192; Sobieski v. St. Paul & D. R. Co., 41 Minn. 169, 42
N. W. 863; Anderson v. MiU Co., 42 Minn. 424, 44 N. W. 315 (logs on slide).
Failure to give signals is not one of the usual and ordinary risks assumed
by a section hand on a hand car, as an incident to his employment. Nor-
thern Pac. R. Co. V. Charless, 7 U. S. App. 359, 2 C. C. A. 380, and 52 Fed.
562. Evidence that plaintiff, a brakeman, who was directed by the con-
ductor to go between moving cars to uncouple them, caught his foot in

1002 MASTER AND SERVANT. [Ch. IS-

ever, a uniform custom may be a sufScient substitute for a formal
rule; as that only the person uncoupling cars should give the
signals for the movement of the train.*' It is the duty of the serv-
ant to regulate his conduct with due reference to the master's rules,
which he knows, or ought to know, provided such rules are rea-
sonable, and if he fails to do so he cannot recover.** But a master
cannot escape liability for negligence by prescribing rules, any more
than he can by expressly contracting against liability for it. Ac-
cordingly, he may not, by rule, provide that employ^ must look
after, and be responsible for, their own safety. Therefore, a rule
was held to be properly excluded which required brakemen to ex-
amine brakes before leaving the terminal station, and to report any
found out of order."® But where a road requires the signature of an
employ^ to its rules, calling his attention, inter alia, to differences
in coupling apparatus, and to the danger naturally incident there-
to, and also expressly allows time for examination, this takes away
the right of the employ^ to rely on presumption of performance of
duty by the master, and increases the care which the servant is
bound to exercise; that is, while the master may not contract
against negligence on his part, he may secure additional care on
the part of his employ^ by such a rule.*^

Warning and Instructing as to Incidental Dangers,

If the servant knows all the master could teach him, he is, under
ordinary circumstances, entitled to no warning or instruction from
the master.*^ The right of the servant to assume that the employer

the guard rail, and was run over and Injured because of the conductor's
neglect to stop the cars In accordance with plaintiff's signal, Is sutUclent
to sustain a verdict for plaintiflf. Alabama Great Southern U. Co. v. Ful-
ghum (Ga.) 19 S. B. 981. As to when rules are not required by the nature
of business, see Texas & N. O. Ry. Co. v. Echols, 87 Tex. 339, 27 S. W. 60,.
and 28 S. W. 517 (ties, creosote works).

*8 Kudik V. Lehigh Val. R. Co., 78 Hun, 492, 29 N. Y. Supp. 533; Rutledge
V. Missouri Pac. Ry. Co., 123 Mo. 121, 24 S. W. 1053, affirmed 27 S. W. 327.

4 0 Post, p. 1018, "Assumption of Risk— Rules."

60 Louisville & N. R. Co. v. Orr, 91 Ala, 548, 8 South. 3(50.

01 Bennett v. Northern Pac. R. Co., 2 N. D. 112, 49 N. W. 408. And see

■

Michigan Cent R. Co. V. Smlthson, 45 Mich. 212, 7 N. W. 791. But see
Chicago, St. L. & P. R. Co. v. Fry, 131 Ind. 319, 2S N. E. 989.
B2 Uickey v. Taaffe, 105 N. Y. 20, 12 N. E. 28tJ. Et vide Foley v. Pettee

Ch. 13] master's duties to servant. 1003

has performed his duty includes the right to rely on the principle
that when he is placed in a situation of danger requiring engrossing
attention the master will not without warning subject him to other
perils unknown to him/' And in general the master should give
warning as to perils not obvious, or known to him only, whether he
actually knew of them, or should have known of them in the exer-
cise of reasonable care/* Thus, where a man is sent to work to
undermine a bank which is expected to fall by the law of gravita-
tion, and where he was expected to look out for himself, the danger
would be obvious, and the master under no obligation to give warn-
ing/" But where the work is such that the servant did not know
of the danger of a bank falling by force of gravitation, and the mas-
ter's superintendent recognized and intended, but failed, to guard
against the danger, the jury must determine the question of negli-
gence of the master/* And generally the master is bound to give

Mach. Works, 149 Mass. 294, 21 N. E. 304; Delaware River Iron Shlp-Biiild-
ing Co. V. NuttaU, 119 Pa. St. 149, 13 Atl. 6r>; Thain v. Old Colony R. Co.,
161 Mass. 353, 37 N. B. 309; White v. Wittoninim Llth. Co., 131 N. Y. 631,
30 N. E. 236; Cincinnati, N. O. & T. P. Tly. Co. v. Mealer, 1 C. C. A. 633, 50
Fed. 725; Hughes v. Chicago, M. & St. P. Ry. Co., 79 Wis. 264, 48 N. W. 259;
Railroad Co. f. Fort, 17 Wall. 553; Dowling v. Allen, 74 Mo. 13; Morbach
V. Home Mln. Co.. 53 Kan. 731, 37 Pac. 122. As to raising issue outside of
pleading with respect to warning, rules, and providing servants, see Alaska
Tread weU Gold Mln. Co. v. Whelan, 12 C. C. A. 225, 64 Fed. 462; Yeager v.
Burlington, C. R. & N. Ry. Co. (Iowa) 61 N. W. 215 (railroad company is not
bound to instruct experienced biakeman how to mount mqving cars).

B8 Michael v. Roanoke Mach. Works, 90 Ya. 492, 19 S. K. 261; St. Louis,.
A. & T. Ry. Co. V. Triplett, 54 Ark. 289, 15 S. W. 831, and 16 S. W. 266;
ante, p. 280; Louisville, E. & St. L. C. R. Co. v. Hanning, 131 Ind. 528, 31 N. E.
187.

s« As to the vicious working propensity of a horse, Helmke v. Stetler, 6&
Hun, 107, 23 N. Y. Supp. 392; Lowe v. Railway Co. (Iowa) 56 N. W. 519;
a broncho, Leigh v. Omalia St. Ry. Co., 36 Neb. 131, 54 N. W. 134. Et vide
Williams V. Clough, 3 Hurl. & N. 258; Malone v. Haweley, 46 Cal. 409.

" Griffin v. Ohio & M. Ry. Co., 124 Ind. 326, 24 N. E. 888; Swanson v.
City of Lafayette, 134 Ind. 025, l\3 N. E. 1033.

6« Lynch v. Allyu, 160 Mass. 248, 35 N. E. 550. Et vide Railsback v. Pres-
ident, etc., 10 Ind. App. 622, 38 N. E. 221; Larich v. Moles (R. I.) 28 Atl. 661.
But see St. Louis, A. & T. Ry. Co. v. Torrey, 58 Ark. 217, 24 S. W^. 244, to
the effect that a bridge carpenter was not entitled to warning where there
was no evidence of inexperience or necessity for special training.

1004 MASTER AND SERVANT. [Ch. 13

warning of latent defects and natural dangers not obvious, of which
he knew, or ought to have known.*^^ In Bohn Manuf'g Co. v. Erick-
son " the law on this subject is stated by Sanborn^ J., with great
clearness. It is the duty of the master to notify the servant of
latent dangers. "Obviously the line between dangers apparent and
latent varies with the varying experience and capacity of the serv-
ants employed. Bisks and dangers that are apparent to the man
of long experience and of a high order of intelligence may be un-
known to the inexperienced and ignorant. Hence, if the youth,
inexperience, and incapacity of a minor who is employed in a haz-
ardous occupation are such that a master of ordinary intelligence
and prudence would know that he is unaware of, or does not appre-
ciate the ordinary risks of, his employment, it is his duty to notify
him of them, and instruct him how to avoid th^m. This notice and
instruction should be graduated to the age, intelligence, and ex-
perience of the servant. They should be such as a master of or-
dinary prudence and sagacity would give under like circumstances,
for the purpose of enabling the minor *• not only to know the dan-
gerous nature of his work, but also to understand and appreciate
its risks, and avoid its dangers. They should be governed, after

87 Salem Stone & Lime Co. v. Griffin (Ind. Sup.) 38 N. E. 411. Whether
the tendency of a revolving saw to throw upward any object touching it at
the back was such a latent danger as defendant was required to warn his
employs thereat (a minor) was for the jury. And see Hopkinson v. Knapp
& Spaulding Co. (Iowa) 60 N. W. 653 (unlighted elevator shaft). But see
Slddall V. Pacific Itfills, 162 Mass. 378, 38 N. E. 969 (minor working at tank
containing hot caustic for bleaching. Master held not in fault in having
failed to notify plaintiff what to do in case fellow servant was negligent).
And see Griffin v. Glen Manuf'g Co. (N. H.) 30 Atl. 344.

B8 55 Fed. 943. This was applied to a boy of 15 employed at a wood- work-
ing machine. It was held that the revolving knives were an obvious peril
assumed by the boy, unless they created a suction, tending to draw his hand
into them, unknown to the boy. In the subsequent trial of the case the
jury viewed the premises, and found against the existence of such suction.
Chicago Anderson Pressed-Brlck Co. v. Reinneiger, 140 lU. 334, 29 N. E. 1106;
Dowling V. Allen, 74 Mo. 13-16; St. Louis & S. E. Ry. Co. v. Valirius, 56
Ind. 511-518; Buckley v. Gutta-Percha & Rubber Manuf'g Co., 113 N. Y.
540, 21 N. E. 717; Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18,
9 N. E. 594-598. Cf. Pullman Palace-Car Co. v. Laack, 143 111. 242, 32 N.
E. 285.

»» Railroad Co. v. Fort, 17 Wall. 553.

Ch. 13'' master's duties to servant. 1005

all, more by the experience and capacity of the servant than by his
age, because the intelligence and experience of men measure their
knowledge and appreciation of the dangers about them far more
accurately than their years.'' •• By way of illustration, a master has
a right to expect a minor to keep his hands out of a revolving ma-
chine, just as he would keep away from a locomotive in motion."^
If, however, the danger be concealed, the minor may be allowed to

60 Experienced engineer is not entitled to detailed notice of physical pe-
culiarity of the road or engine. Thain v. Old Colony R. Co., 161 Mass. 353,
37 N. K. 309; Bellows v. Pennsylvania & N. Y. Canal & R. Co.. 157 Pa. St.
51, 27 Atl. 685. Revolving machinery, Richstain v. Washington Mills Co.,
157 Mass. 538, 32 N. E. 90S; couplers, Cincinnati, N. O. & T. P. Ry. Co. v.
Mealer, 1 C. C. A. 633, 50 Fed. 725.

«i Berger v. St Paul, M. & M. R. Co., 39 Minn. 78, 38 N. W. 814; Cheney v.
Middlesex Co., 161 Mass. 29G, 37 N. E. 175; KalUen v. North Western Bed-
ding Co., 46 Minn. 187, 48 N. W. 779; Mackin v. Alaska Refrigerator Co..
100 Mich. 276, 58 N. W. 999; McCool v. Lucas Coal Co., 150 Pa. St. 638, 24
Atl. 350; McCue v. NaUonal Starch Manuf g Co., 142 N. Y. 106, 36 N. B.
809; International & G. N. Ry. Co. v. Htazie, 82 Tex. 623. 18 S. W. 681;
Briggs v. Newport News & M. V. Co. (Ky.) 24 S. W. 1069. But to set a
minor to work on a heavy piece of iron near a steam trip hammer is negli-
gence. Yeaman v. NoblesvlUe Foundry & Mach. Co. (Ind. App.) 30 N. B. 10;
lieiKtritz v. American Zylonlte Co., 154 Mass. 382, 28 N. E. 294. Bt vide
Relsert v. Williams, 51 Mo. App. 13; Keller v. Gaskill, 9 Ind. App. 670, 3r»
N. E. 303. An employer should explain to an inexperienced lad the danger
of a brakeman*s life. Texas & P. R. Co. v. Brick, 83 Tex. 598, 20 S. W. 511;
St Louis, I. M. & S. R. Co. v. Davis, 55 Ark. 462, 18 S. W. 628. So the dan-
ger of cleaning a "woolen mule." Tagg v. McGeorge, 155 Pa. St. 3G8, 26 Atl.
071. The question Is for the jury to determine as to existence of special and
not obvious danger, and the necessity of warning or teaching because of in-
experience. May V. Smith, 92 Ga. 95, 18 S. B. 360; Harris v. Shebek, 151 111.
287, 37 N. E. 1015. In Chicago Anderson Pressed-Brlck Co. v. Relnneiger.
140 111. 334, 29 N. E. 1106, a very satisfactory statement of the principle will
be found, as follows: That, to exculpate the master for damage done by
danger not obvious, he must show fact of Instruction, capacity of the minor
to receive instruction, understanding of the danger In fact by the minor, and
the minor's fitness for working. However, the employment of a child under
age allowed by employment act Is per se negligence. Evidence that the
same kind of machines were used without guards in another factory, where
the boy had previously worked, was also competent, as bearing on the ques-
tion whether, If the boy had only been accustomed to the machine with a
guard, and might be liable, from force of habit or Ignorance of the Increased
danger, to push his finger too close to the rolls, he would have been entitled

1006 MASTER AND SERVANT. [Cll. 13

recover/^ Inexperienced servants, on the same principle, are en-
titled to instruction whenever the dangers or means of avoiding
danger are not obvious."^ Thus where an inexperienced brakeman,
who has been told how to couple cars with single deadwood, but .
has never seen nor been told of coupling with double deadwood,
was injured by the latter, he has a cause of action against his em-
ployer.®* The duty as to warning does not apply where the servant
received the needed information from persons other than the em-
ployer, or where such information may be attributed to him as the
ordinary danger of the service.**

to special instruction as to the danger.* Reese v. Hershey, 163 Pa. St. 25:^
29 Ati. 907.

62 Haj'nes v. Erk, 6 Ind. App. 332, 33 N. E. 637 (concealed knives); Arm-
strong y. Forg, 162 Mass. 544, 39 N. E. 190 (treadle machine); Owens v. Ernst,
1 Misc. Rep. 388, 21 N. Y. Supp. 426 (where a combination of starch, heat,
and dampness, and a hot cylinder caused injury); Chicago Anderson Pressed-
Brick Co. v. Reinneiger, 140 111. 334, 29 N. E. 1106 (where the machine, inter
alia, had a Jerky motion). And see Atlanta & W. P. R. Co. v. Smith (Ga.)
20 S. E. 763.

68 Atlas Engine Works v. Randall, 100 Ind. 293; Walsh v. Peet Valve Co.,
110 Mass. 23; Cayzer v. Taylor, 10 Gray, 274; ConnoUy v. Paillon, 41 Barb.
366; Baxter v. Roberts, 44 Cal. 187.

•* Reynolds v. Boston & M. R. Co., 64 Vt 66, 24 Atl. 134. Cf. Mcl^rfiren v.
WiUiston, 48 Minn. 299, 51 N. W. 373. So as to an inexperienced lad. St.
Ix)uls, I. M. & S. Ry. Co. v. Davis, 55 Ark. 462, 18 S. W. 628. Cf. Arizona
I^umber & Timber Co. v. Mooney (Ariz.) 33 Pac. 590 (circular saw); Texas
& P. Ry. Co. V. White, 82 Tex. 543, 18 S. W. 478 (unusual brake beam);
Darling v. New York, P. & B. R. Co., 17 R. I. 708, 24 Atl. 462 (telltale of
unusual height); Bennett v. Northern Pac. R. Co., 2 N. D. 112, 49 N. W. 408
(drawbars of unusual dimensions); St Louis, I. M. & S. Ry. Co. y. Higgins,
.j3 Ark. 458, 14 S. W. 653 (links).

6 5 Consolidated Coal Co. v. Scheller, 42 111. App. 619; Downey v. Sawyer,
157 Mass. 418, 32 N. E. 654; TrunUe v. North Star Woolen Mills Co. (Minn.)
.■>8 N. W. 8^52; Alabama Connellsville Coal & Iron Co. v. Pitts, 98 Ala. 285,
13 South. 135; Benfield v. Vacuum Oil Co., 75 Hun, 209, 27 N. Y. Supp. 16;
East Tennessee, V. & G. Ry. Co. v. Turvaville, 97 Ala. 122, 12 South. 63;
Louisville & N. R. Co. v. Boland, 96 Ala. 620, 11 South. 007; Cincinnati, N.
O. & T. P. Ry. Co. V. Mealer, 1 C. C. A. 633, 50 Fed. 725; Gibson v. Oregon
S. L. & U. N. Ry. Co., 23 Or. 493, 32 Pac. 295. But the master does not dis-
charge his duty of warning of danger by notifying a fellow sei-vant who fails
to communicate to plaintiff. Pullman Palace-Car Co. v. Laack, 143 lU. 242,
32 N. E. 285.

Ch. 13] master's duties to servant. 1007

Warning and Instructing as to Extraneous Dangers.

It is to be remembered, however, that the master's liability is
broader than for mere negligence in its popular sense. The master
may be bound to give to his employ^ all the information he may pos-
sess with regard to the danger of employment, whether arising from
the nature of the occupation or from extraneous causes, to enable
the employ^ to determine for himself whether he is willing to incur
the hazard for the wages offered. The liability of the master in
cases of negligence usually arises from his failure to protect against,
or to advise as to the existence of, dangers incident to the employ-
ment. He is bound, however, to protect his employ^ from danger
known to him to arise from the felonious or tortious designs of
third persons acting in hostility to the employer.** The master may
expose the servant to danger of arrest in an employment which the
master knows to be in violation of an injunction of a court having
jurisdiction, as to the existence of which the servant is ignorant.*^

Inspection y Supervision^ and ^nforcemeni.

The general duty of the master includes the duty and involves
the exercise of care in maintaining *• such appliances, machinery,
and place of work in proper condition and safety, and in making
tests and examinations at proper intervals.®* If a defect in the con-
struction of a railroad track, which the servant had just inspected

•e Baxter v. Roberts, 44 Cal. 187. A principal is bound to reimburse his
agent where the agent has innocently taken personal property which, though
claimed adversely by another, he had reasonable ground to believe belonged
to his principal. Moore v. Appleton, 26 Ala. 633. And see Guirney v. St.
Paul, M. & M. Ry. Co., 43 Minn. 496, 46 N. W. 78. And, generally, see
Strahlendorf v. Kosentahl, 30 Wis. 674.

•T Guirney v. St Paul, M. & M. Ry. Co., 43 Minn. 41X5, 46 N. W. 78.

e« Galveston, H. & S. A. R. Co. v. Temploton, 87 Tex. 42, 26 S. W. 1066
(brake socket).

«• Fuller v. Jewett, 80 N. Y. 46; Northern Pac. R. Co. v. Herbert, 116 U. S.
042, 6 Sup. Ct. 590; Brann v. Chicago, R. I. & P. R. Co., 53 Iowa, 595, 6 N.
W. 5. In an action against a railroad company by a conductor on an engine
for injuries caused by the breaking of the flange of a wheel of tlie teudor,
it appeared that it was the duty of the engineer to inspect such wheels.
There. was evidence of an old, rusty crack in the flange, which could have
been discovered by a reasonably careful inspection. Held, that a demurrer
to the evidence by defendant was properly overruled* Coontz v. Missom'i
Pac. Ry. Co., 121 Mo. 652, 26 S. W. 661.

1008 MASTER AND SERVANT. [Ch. 13

in the coni'se of his employment, caused the accident in which he
was injured, it is immaterial whether in inspecting it he had acted
as the company's engineer or as an arbitrator in its behalf J® This
duty is a continuing one, and daily use of appliances and place in
safety is not sufficient to show the performance of the duty of
inspection.^ ^ Thus a railroad company is bound to inspect the
wheels of its cars, and is liable if it negligently permits a car to
go into service in a train with one of its wheels in a dangerously
defective condition, which could have been detected without diffi-
culty, and, in consequence of the wheel giving way, injury results.'*
Tlie duty of inspection is affirmative, and must be continuously ful-
filled, and positively performed.''* Accordingly, to render the mas-
ter liable for an injury to a servant, caused by defective machinery,
appliances, and place, it is not necessary that the master have actual
knowledge of the defect oc danger. It is sufficient to show that
he could have discovered the defect or danger by the exercise of rea-
sonable care and diligence in the performance of his duties.'* If^

70 BvansviUc & R. R. Co. v. Barnes, 137 Xnd. 306. 36 N. B. 1002; Chicago
& E. R. Co. V. Branyan, 10 Ind. App. 570, 37 N. B. 190; Missouri, K. & T.
Ry. Co. V. WaUter (Tex. Civ. App.) 26 S. W. 513.

71 Tangney v. J. B. Wilson & Co., 87 Mich. 453, 49 N. W. 666 (rusty chain
over pulley); Moynllmn v. Hills Co., 146 Mass. 586, 16 N. B. 574; Myers v.
Hudson Iron Co., 150 Mass. 125, 22 N. E. 631; Ryalls v. Mechanics' Mills, 150
Mass. 190, 22 N. E. 766; Babcock v. Old Colony R. Ck)., 150 Mass. 467, 23
N. E. 325; Mooney v. Connecticut R. Luml^r Co., 154 Mass. 407, 28 N. B. 352;
Toy V. United States Cartridge Co., 150 Mass. 313, 34 N. B. 461. But see
ReiUy v. CampbeU, 8 C. C. A. 438, 59 Fed. 990.

T2Coontz V. Missouri Tac. R. Co., 121 Mo. 652, 26 S. W. 661; Kennedy v.
Chicago, M. & St. P. R. Co. (Minn.) 58 N. W. 878 (brake and jack screw);
Sheedy v. Chicago, AL & St P. R. Co., 55 Minn. 357, 57 N. W. 60 (brake staff);
Bailey v. Rome, W. & O. R. Co., 139 N. Y. 302, 34 N. E. 918 (a rod); McDon-
ald V. Chicago, St P., M. & O. R. Co., 41 MUin. 430, 43 N. W. 380 (turntable);
Oilman v. Eastern R. R. Co., 13 Allen, 443; Lake Shore & M. R. Co. v. Fitz-
patrick, 31 Ohio St 479; Anderson v. Minnesota & N. W. R. Co., 39 Minn. 523,
41 N. W. 104 (hand cars).

78 BuzzeU V. Manufacturing Co., 48 Me. 113, 77 Am. Dec. 212 (and see note,
p. 220); Brann v. Chicago, R. I. & P. R. Co., 53 Iowa, 595, 0 N. W. 5.

74 Houston V. Brush, 66 Vt 331, 29 Atl. 380 (machinery); Chicago & E. R.
Co. V. Branyan, 10 Ind. App. 570, 37 N. E. 190 (a car). Cf. Illinois Cent R. C3o.
V. Bowles, 71 Miss. 1003, 15 South. 138; Columbus, H. V. & T. R. Co. v.
Erick (Ind. Sup.) 37 N. E. 128 (engine, by statute); Lake Erie & W. R. Co. v.

Ch. 13] MASTER'S DUTIES TO SERVANT. 1009

however, a defect in an appliance is shown to be structural, and is
of such character as renders it unsafe, it may be inferred that the
employer was aware of the defect. The burden does not rest on
the employ^, when injured thereby, to produce further evidence that
the master had notice thereof* Actual knowledge of defect or
danger is suflficient to attach liability.''* On the same principle, the
master must supervise his servants and see that they do their duty."'^
Thus he must follow them in making needed repairs.''* The master
must also see that his rules are enforced. Therefore a railroad
company is liable for negligence if it permits its servants habitually
to disregard regulations the enforcement of which is necessary to
the safety of other servants. It is responsible for negligence in al-
lowing a dangerous method of doing its work to be followed.'''

McHenry, 10 Ind. App. 525, 37 N. B. 186 (engine, common law); Finley v.
Richmond & D. R. Co., 59 Fed. 419 (Id.); Ohio & M. Ry. Co. v. Heaton (Ind.
App.) 35 N. E. 687 (switch lock); Beardsley v. Minneapolis St. Ry. Co., 54
Minn. 504, 56 N. W. 176 (bucking electric car).

7» Thayer, J., in Union Pac. R. Co. v. James, 6 C. C. A. 217, 56 Fed. 1001-
1003, collecting cases. This was applied to injury caused by a frog which
had never been blocked. If the frog should have been origlnaUy blocked, and
the blocking came out, defendant is only liable in cai^e of actual or constnic-
tlve notice. Haskins v. New York Cent & H. R. R. Co.. 79 Hun. 159. 29 N.
Y. Supp. 274. And see Salem Stone & Lime Co. y. Tepps, 10 Ind. App. 51i>.
38 N. B. 229; Northern Pac. R. Co. v. Herbert, 116 U. S. 642-646, 6 Sup. Ct.
590.

TO Union Stock Yards Co. of Omaha v. Larson, 38 Neb. 492, 56 N. W. 1079
(drawhead). Cf. Evans v. Chamberlain, 40 S. C. 104, 18 S. E. 213.

77 A railroad company, which has provided a competent switchman, is not,
so far as its employes are concerned, required to see that he remains at his
post. Parker v. New York & N. E. R. Co. (R. I.) 30 Atl. 849; Connors v.
Durite Manuf'g Co., 156 Mass. 163, 30 N. E. 559.

7B Sweat V. Boston & A. R. Co., 156 Mass. 84, 31 N. E. 296, collecting cases.

T»Cooley, Torts, 539; Mitchell v. Crassweller, 13 O. B. 2.37. A railroad
»K)mpany is guilty of negligence in permitting its order forbidding a fireman
1o handle its engine to be violated by an engineer. Ohio & M. R. Co. v. Col-
larn, 73 Ind. 261. And, generally, see Warn v. New York Cent. & H. R. R.
<3o. (Sup.) 29 N. Y. Supp. 879.

LAW OF T0BT8— 64

1010 MASTKR AND SEKVANT. [Ch. 13

SAME— MASTER NOT AN INSURER.

280. A master is liable only for failure to exercise rea-
sonable care in the performance of his duties to his
servant. He is not an insurer.

The master is not an insurer.^* He is liable for failure to exercise
care proportionate to the danger. This care is not controlled by the
custom or current usage and practice among other employers in
the same line of business,®^ but has reference to the care of a pru-
dent man ®^ in avoiding natural perils, and in using known devices
for avoiding them.®* The employer is, however, required to know
what appliances are suitable, and in common and ordinary use, for
the pui-pose.®* The master is not liable for latent defects.** Thus,

80 Peoria, D. & E. R. Co. v. Hardwick, 48 lU. App. 562; Camp Point
Manuf'g Co. v. Ballon, 71 111. 417; Chicago, R. I. & P. R. Co. v. Lonergan,
lis 111. 41, 7 N. E. 55; Reilly v. CampbeU, 8 C. C. A. 438, 59 Fed. 090; Burke v.
Witherbee, 98 N. Y. 562; Powers v. New York, L. E. & W. R. Co., Id. 274;
Nutt V. Southern Pac. R. Co., 25 Or. 291, 35 Pac. 653; Lake Shore & M. S.
Ry. Co. V. McCormick, 74 Ind. 440; Chicago & A. R. Co. v. Kerr, 148 lU. 605,
35 N. E. 1117; Watts v. Hart, 7 Wash. 178, 34 Pac. 423, 771; Texas & P. R.
Co. V. Patton, 9 C. C. A. 487, 61 Fed. 259; IlUnois CeLt R. Co. v. Bowles
(Miss.) 15 South. 138; Galveston, H. & S. A. Ry. Co. v. Gormley (Tex. Civ.
App.) 27 S. W. 1051.

81 McCormick Harvesting Aladi. Co. v. Burandt, 136 lU. 170, 26 N. E. 588.

82 But evidence, for example, that, at another place besides defendant's,
similar machines are used without guards, is admissible. Reese v. Hershey,
163 Pa. St. 253, 29 Atl. 907. Et vide Kehler v. Schwenk, 144 Pa. St 348, 22
Atl. 910; Gates v. Southern Minnesota Ry. Co., 28 Minn. 110, 9 N. W. 579;
Van Winkle v. Chicago, M. & St P. R. Co. (Iowa) 61 N. W. 929; Dougan v.
Champlaln Transp. Co., 56 N. Y. 1; GkK>dnow v. Walpole & G. Emery AliUs,
146 Mass. 261, 15 N. E. 576; Washington & G. R. Co. v. McDade, 135 U. S.
554, 10 Sup. Ct 1044. .Generally, as to precaution of prudent persons before
accident, see Wabash, St L. & P. R. Co. v. Locke, 112 Ind. 404, 14 N. B. 391;
Chicago, B. & Q. R. Co. v. Stumps, 55 111. 367.

88 The exercise of customary care with respect to instruments, as a turn-
table is no defense. Koons v. Railroad Co., 65 Mo. 592; Deer. Neg. § 9.

84 Bannon v. Lutz, 158 Pa. St 166, 27 Atl. SOO. Hammer test of boiler
strength, Jones v. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679.

t» In other words, the master must have knowledge or notice of defect. Ma-

Ch. 13] master's duties to servant. 1011

he cannot be held responsible for a hidden defect in switches.*"
But, on the other hand, for example, if a hook holding a very heavy
weight has a crack plainly in sight, the master is negligent in allow-
ing it to be used.*' The jury determines the exercise of care.**
That an appliance is simple in construction, has been in use a long
time, and duly inspected, are matters, the consideration of which
may justify a court in taking the case from the jury.** The master
seems to be liable for only such damages as are likely to occur, or
may be reasonably apprehended, because of an alleged unsafe con-
dition of the place or appliance furnished."®

The duty of the master is sometimes stated with reference to the
results of care, i. e. that he is bound to furnish instrumentalities,
place, and sen-ants reasonably safe as a matter of fact. On the
other hand, however, it is insisted by the later cases that this is
inaccurate and objectionable, especially because it is likely to con-
fuse his duty with insurance, and that the rule should have refer-

honey v. New York Cent & H. R. R. Co., G4 Hun, 038, 19 N. Y. Supp. 611;
Chicago, St L. & P. R. Co. v. Pry, 131 Ind. 319, 28 N. E. 989; Sweat v. Bos-
ton & A. R. Co., 156 Mass. 284, 31 N. E. 296.

8« Ladd V. New Bedford Ry. Ca, 119 Mass. 412.

•7 Spicer v. South Boston Iron Co., 138 MnKS. 426. Cf. Reichla v. Graons-
felder, 52 Mo. App. 143; Kansas City & P. R. Co. v. Ryan. 52 Kan. 637, 35
Pac. 292 (Uf Ung Jack).

. B 8 As to appliances: Use of safety chains in connection with cinder pot.
Tennessee C, I. & R. Co. v. Hemdon, 100 Ala. 451, 14 South. 287. Et vide
Tabler v. Hannibal & St. J. R. Co., 93 Mo. 79, 5 S. W. 810; Muirhead v. Han-
nibal & St J. R. Co., 103 Mo. 251, 15 S. W. 530.

«» Bradbury v. Kingston Coal Co.. 157 I'a. St 231, 27 Atl. 400. Cf. La
Pierre v. Chicago & G. T. R. Co., 99 Mich. 212, 58 N. W. 60. Et vide Lafflin
V. Buffalo & S. W. Ry. Co., 106 N. Y. 136, 12 N. E. 599; Stringham v. Hilton.
Ill N. Y. 188, 18 N. E. 870.

90 Hence, if a brakeman lean down on the ladder of a moving car to ascer-
tain why stones were being thrown under the car, the employer is not liable
if he should strike a cattle guard. McKee v. Chicago, R. I. & P. R. Co., 83
Iowa, 616, 50 N. W. 209. Even if the machinery be defective, but no danger
be supposable under the circumstances, the injured servant cannot recover.
Trtnity County Lumber Co. v. Denham, 85 Tex. 56, 19 S. W. 1012. So, if
servants undertake to use machinery or instruments for purposes for which
they were not designed, and for which the employer had no reason to suppose
they would be used, it is their own fault or folly if harm comes from it.
Stewart v. Harvard College, 12 Allen, 58; Felch v. AUen, 98 Mass. 572.

1012 MASTER AND SERVANT. [Ch. 13

ence, not to the result, but to the exercise of care.^* The duty of the
master, according to this line of authorities, is performed if he uses
due care and diligence in the performance of his duty.**

The line of distinction, however, between the duty of exercising
reasonable care to provide safe instrumentalities, and the like, and
of providing such instrumentalities, is a fine one.** Essentially the
same limitations on liability may be introduced, whether the care
be referred to either formula; for example, whether the reasonable
care be determined by the state of art or science, or whether the
safety of the instrumentality is reasonable, having due regard to
the state of art or science. In either view, the physical facts in the
case in issue (for example, with reference to the danger of place or
instrumentality) are the natural and customary basis of proof. To
change this rule and practice, and make the subject-matter of the
jury's inquiry not the actual performance of the master's duty (for
example, the condition of place or instrumentality), but the conduct
of the master with respect thereto (for example, his department of
tests or system of inspection), would put the servant at an unfair
and unreasonable disadvantage. The physical facts which caused
the injury complained of, he ought to be able, and may reasonably
be required, to show; but that part of the management of an em-
ployer's business which results in the exercise of due care is pe-
culiarly within such employer's knowledge and control. Investiga-
tion thereof would be likely to be as inquisitorial to a defendant

•1 Chicago, R. I. & P. R. Co. v. Llnney, 7 O. C. A. G5G, 59 Fed. 45 (coupUng
apparatus of cars); Union Pac. R. Co. v. Jarvl, 3 Wyo. 375, 23 Pac. 398; Il-
linois River Paper Co. v. Albert, 49 111. App. 363; Dewey v. Detroit, G. H. &
^l, Ry. Co., 97 Mich. 329, 52 N. W. 1H2, and 56 N. W. 756; St. Louis S. W.
R. Co. V. Jagerman, 59 Ark. 98, 26 S. W. 591; Gulf, C. & S. F. R. Co. v. Mc-
Neill (Tex. Civ. App.) 25 S. W. 647; Missouri, K. & T. Ry. Co. v. Woods,
Id. 741; Eddy v. Adams (Tex. Sup.) 18 S. W. 490. Cf. Brymer v. Southern
Pac. Co., 90 Cal. 496, 27 Pac. 371, with Sappenfleld v. Main St. & A. P. R. Co.,
91 Cal. 48, 27 Pac. 590.

02 St. Louis S. W. R. Co. v. Jagerman, 59 Ark. 98, 26 S. W. 591; Park
Hotel Co. V. Lockhart (Ark.) 28 S. W. 23.

03 In Louisville & N. R. Co. v. Kelly, 11 C. C. A. 260, 63 Fed. 407, It was
held that the master is not liable for the carelessness or unskill fulness of a
fellow servant, If due care had beon exercised in his employment; and that
U was en-or to refuse to instruct the jury that, if the instrumentality involved
(a car) was reasonably and ordinarily safe, plaintiff could not recover.

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1013

as impracticable to a plaintiflf. Many well-considered cases, more-
over, retain the earlier phraseology, of requiring the master to fur-
nish reasonably safe place, instrumentality, and the like.®*

However, with respect to the employment of a fellow servant, the
law seems to be quite definitely settled that the duty of an employer
is discharged by the exercise of reasonable care in the selection of
his servants. Thus, if a railway company employ a competent phy-
sician to take care of an injured employd, it is not liable for the
death of the em ploy 6 through a mistake of the physician.*" But
the exercise of the greatest diligence on the part of the master in
the selection of his servant is no excuse to third persons not in his
employ, if such servant, by his negligence, does damage to any one
to whom the master owes a duty."'

The doctrine would seem to be fully sustained, from whatever
point of view it be regarded, that the master is only exonerated by
showing that he actually exercised due care. Accordingly, neither
having prescribed regulations nor having enforced them will ex-
culpate the master for liability to servant injured by a defective
engine, unless there resulted the actual exercise of due care.*'

ASSUMPTION OF RISE BY SERVANT.

281. On entering service, a servant is said to impliedly
contract that he possesses the ordinary skill and
experience of those engaged in the occupation he
undertakes, that he will exercise ordinary care to
protect himself while engaged in that occupation,"^

•4 Houston V. Brush (1894) 66 Vt. 331, 29 Atl. 380.

»» Atchison, T. & S. F. R. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282; Lonls-
vUle & N. R. CJo. V. Kelly, 11 C. O. A. 260, 63 Fed. 407.

»« And see "Fellow SeiTants," post, p. 1029; Osborne v. McMasters, 40 Minn.
103, 41 N. W. 543.

»7 Missouri Pac. R. Co. v. McElyea, 71 Tex. 386, 9 S. W. 313.

•8 Rnssell v. Tillotson, 140 Mass. 201, 4 N. E. 231. Custom may be evi-
dence of due care. In an action against a railroad company for the death of
a switchman caused by his attempting to get on a defective footboard on an
engine, evidence as to a custom of switchmen, in yards other than defend-
ants, of getting on footboards of moving engines, is admissible, as the meas-
ure of decedent's care is the prudence of careful switchmen, no matter by

1014 MASTKU AND SKUVANT. [Ull. 13

and that he will assume the risks of his occupa-
tion"

282. The risks which the servant assumes may arise —

(a) From circumstances exclusive of the risk of fello'w

servants, and may be either—

(1) The ordinary risks of the employment;

(2) The extraordinary risks of the employment.

(b) From the negligence of fellow servants.

SAME— OBDINABY BISKS.

283. Excluding the negligence of fellow servants, a serv-

ant assumes the ordinary risks ^^ of his employ-
ment, with the instrumentalities, in the place, and
under the rules of the work for which he is en-
gaged, w^hich are reasonably necessary and inci-
dental to it, and which are apparent to ordinary
observation: provided —
(a) He knew and appreciated, or should have known and
appreciated, the risks and dangers, in the prudent

whom employed. 0*Mellia v. Kanstis CIt>, St. J. & C. B. R. Co., 115 Mo. 205,
21 S. W. 503.

00 However finely settled this doctrine may be, it is subject to much criti-
cism. The objections will be found stated Id the argument for plaintiCT In
Freeborg v. St. Paul Plow Works, 48 Minn. 101, 50 N. W. 1026. A state-
ment of the rule favorable for servant will be found in Little Rock, M. R. &
T. Ry. Co. V. Leverett, 48 Ark. 33:^-347, 3 S. W. 50; for matter. In Hamilton v.
Rich Hill Coal Miu. Co., 108 Mo. 304, 18 S. W. 077. Bohn Manufg Co. v.
Erickson, 5 C. C. A. 341, 55 Fed. 946. An employ^ is not presumed to know
whetlier his employer has furnished appliances which are reasonably safe
and in ordinary use in case of latent danger, and in such case he is not
chargeable with an assumption of the risks involved in the failure to pro-
vide them. Bannon v. Lutz, 1.58 Pa. St. 166, 27 Atl. 800. A brakeman does
not assume a risk of a telltale not maintained as required by law. Hines v.
New York Cent. & H. R. R. Co., 78 Hun, 239, 28 N. Y. Supp. 820. But see
Mattise v. Consmners* Ice Manuf g Co., 16 South. 400.

ioo In Stewart v. Ohio River R. Co. (W. Va.) 20 S. E. 922, It was pointed
out that the servant assumes all the ordinars* hazards incident to the em-
ployment, whether the employment be dangerous or otherwise; and that the

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1015

exercise of his senses and common sense, regard
being had to his age, capacity, and experience;
(b) The master has exercised reasonable care to prevent
them.'"

Instrumen talities.

The servant aasumes risks ordinarily incidental to the instrumen-
talities of his employment. Thus, cars carrying rails, in course of
travel, disarranged such rails so as to make coupling cars impossi-
ble in the ordinary way. The cars stopped at a station long enough
to enable the rails to be properly placed. An accident occurred,
partly on account of irregular position of rails. It was held that
the disarrangement was a natural result of the transportation; that
the danger was obvious, and the risk assumed. If the servant
knew, or by the use of ordinary observation could or ought to have
known, that danger arose from the splintered rails, or if he knew
and appreciated, or ought to have known or appreciated, the nature
and extent of danger therefrom, he should be presumed to have as-
sumed the risk of employments^* A brakeman does not assume the

test of liabilty is the negligence of the master, not the danger of the employ-
ment, though the danger of the employment may determine the ordinary care
required in the case.

101 The servant and the master do not stand on the same footing as to
ascertaining risks. The servant has by no means the same opportunity for
Inspecting as the master has. Ryan v. Fowler, 24 N. Y. 410; Noyes v. Smith,
28 Vt 59; Hayden v. Smlthville Manuf g Co., 29 Conn. 548. And see Louis-
ville & N. R. Co. V. Kelly, 03 Fed. 407-410, 11 C. C. A. 260. A foreman of
a blacksmith shop does not assume risks arising from the failure of the
master to use reasonable care in providing and keeping in repair the appli-
ances furnished for use in the shop. Nicholds v. Crystal Plate Glass Co.
(Mo. Sup.) 28 S. W. 991.

102 Doyle v. St. Paul, M. & M. Ry. Co., 42 Minn. 79, 43 N. W. 787. Et
vide JacksonviUe, T. & K. W. R. Co. v. Galvin, 29 Fla. (530, 11 South. 231.
Of. Northern Pac. R. Co. v. Everett, 152 U. S. 107, 14 Sup. Ct. 474. But see
Dewey v. Detroit, G. H. & M. R. Co. (Mich.) 56 N. W. 756. Uneven new
side track, O'Neal v. Chicago & I. O. R. Co., 132 Ind. 110, 31 N. E. 669.
Appliances generally. Texas & P. R. Co. v. Rogers, 0 C. C. A. 403, 57 Fed.
378; Craven v. Smith, 89 Wis. 119. 61 N. W. 317; McGuirk v. Shattuck, 160
Mass. 45. 35 N. E. 110; McXamara v. Logan, 100 Ala. 187, 14 South. 175.
The servant assumes the danger of moving a "dead** engine in daylight.
Anglin v. Texas &, P. R. Co., 9 C. C. A. 130, 60 Fed. 553; Schulz v. Johnson,

101(5 MASTER AND SERVANT. C^h- 1^

risk of injury from a defective track or roadbed.*®* By way of con-
trast, in a cold climate, railroad employ^ assume the risks incident
to the accumulation of snow and ice on the tracks.* They assume mani-
fest risks of instrumentalities, although not necessarily incidental to
the service. Thus, if an employ^ voluntarily and without specific
command as to time and manner uses a ladder for adjusting electric
wires, and that ladder is known to both employer and employ^ to be
obviously defective, they both stand on common ground. The em-
ploy^ elects to take the risk, and cannot recover for resulting dam-
age.*®* But where a common laborer was set to work near the
fumes of nitric acid, as to the injurioue effects of which on the liu-
man system under the circumstances experts disagree, the danger

7 Wa^h. 403, 35 Pac. 130 (saw); Crown v. Orr, 140 N. Y. 450, 35 N. B. 648;
Essex County Electric Co. v. Kelly (N. J. Sup.) 29 Atl. 427 (electric pole);
Johnson v. Hovey, 98 Mich. 343, 57 N. VT. 172 (saw frame working im-
properly because of dust and dirt); McGuerty v. Hale, 161 Mass. 51, 36
N. E. G82 (uncovered gearing of machine In plain sight). Cf. McCue v.
National Starch Manufg Co., 142 N. Y. 106, 36 N. E. 809, reversing 66 Hun,
032, 21 N. Y. Supp. 651; Burnell v. West Side R. Co., 87 Wis. 387, 58 N.
W. 772 (commutator of electric motor); Red River Line v. Cheatham, 9
C. C. A. 124, 60 Fed. 517, reveraing 56 Fed. 248 (steamboat custom).

103 Gulf, C. & S. F. Ry. Co. v. Dohl (Tex. Civ. App.) 29 S. W. 1131; Stein-
hauser v. Spraul (^lo. Sup.) 28 S. W. 020. So an unexpected starting of ma-
chinery, Blanton v. Dold, 109 Mo. 04, 18 S. W. 1149.

* Lawson v. Truesdale (Minn.) 02 N. W. 546.

i04jemiey Electric Light & Power Co. v. Murjihy. 115 Ind. 506, 18 N.
E. 30. Steinhauser v. Spraul (Mo. Sup.) 30 S. W. 102. Et vide Bums v.
Ocean S. S. Co., 84 Ga. 709, 11 S. E. 493; O'Neal v. Chicago & I. Coal Ry.
Co., 132 Ind. 110, 31 N. E. 069; Matchett v. Cincinnati, W. & M. Ry. Co.,
132 Ind. 334, 31 N. E. 792. So with respect to defective telegraph pole.
Foley V. Electric Light Co., 54 N. J. Law, 411, 24 Atl. 487. And see Junior
V. Missouri Electric Light & Power Co. (Mo. Sup.) 29 S. W. 988. Chip-
ping from a tool is naturally incident to riveting. H. S. Hopkins Bridge
Co. V. Burnett, 85 Tex. 16, 19 S. W. 886. Where the evidence shows that
the danger of the woris in which the plaintiff was engaged must have been
as obvious to himself as to his employer, and that there was no emergency
requiring him to expose himself to the danger, he is not entitled to recover.
Hazlehurst v. Brunswick Lumber Co. (Ga.) 19 S. E. 756. In an action by an
employ^ for injuries caused by a machine, a charge which assumes that plain- •
tiff did not know the machine was dangerous is erroneous when plaintiff had
seen the machine in operation for six months. B. F. Avery & Sons ▼. Meetv
(Ky.) 28 S. W. 337.

Ch. 13] ASSUMPTION OF RISK BY SKKVANT. 1017

was not so apparent that he could be held to haye voluntarily as-
sumed it^®'

Place,

The risks assumed include the obvious dangers of the place at
which the servant is engaged. Thus an employ^ who, while en-
gaged in removing a wrecked train, goes upon an obviously new and
temporary bridge, defects of which are visible, assumes the risks
arising from such defects.*®* On the other hand, however, an en-

los Wagner v. H. W. Jayne Chemical Co., 147 Pa. St. 475, 23 Atl. 772.

io« McGrath v. Texas & P. Ky. Co.. 9 C. C. A. 133, 00 Fed. 555. So, if
brakeman kucw of low bridge, and failed to stoop, iie cannot recover for
Injury caused by striking it. Chesapeake & O. R, Co. v. Hafner'a Adm*r,
90 Va. 621, 19 S. E. UMi. So in Gibson v. Erie Ry. Co., 03 N. Y. 449; Odell
V. RaUroad Co., 120 N. Y. 325, 24 N. B. 478; Quick v. Minnesota Iron (>>..
47 Minn. 361, 50 N. W. 244 (bell in mine); Chesapeake. O. & S. W. R. Co.
V. McDowell (Ky.) 24 S. W. 007 (unrailed platform); Kaare v. Troy Steel
& Iron Co.. 139 N. Y. 309. 34 N. E. 901; Feely v. Peai-son Cordage Co., 101
Mass. 420, 37 N. E. 308 (well, obvious and known); Ck>nnor8 v. Morton,
100 Mass. 333, 35 N. E. 800; Kleinest v. Kunbardt. 100 Mass. 230, 35 N.
E. 458 (slippery floor and exposed pulley). Cf. Scharenbroioh v. St. Cloud
FibeivWare Co. (Minn.) 00 N. W. 1093; Ragon v. Railway Co., 97 Mich. 205.
50 N. W. 012 (visible hole in roadbed); McNeil v. New York, L. B. ft W.
R. Co., 142 N. Y. <«1, 37 N. K. 500; Id., 71 Hun, 24, 24 N. Y. Supp. (JIO (foot
caught in unblocked guard rail), following Appei v'. Railway Co., Ill N. Y.
550. 19 N. E. 93; Cincinnati, N. O. & T. Ry. Co. v. Mealer, 1 C. O. A. 633.
50 Fed. 725 (this would seem to be an extreme case. A switchman coupling
cars in a yard stumbled over a piece of coke dropped from one of the cars
he was coupling. The court took the case from the Jury, on the theory of
assumption of risk). And, generally, see Emma Cotton-Seed Oil Co. v.
Hale. 50 Ark. 232, 19 S. W. 000; Gulf, C. & S. F. Ry. Co. v. Jackson, 12
C. C. A. 507, 05 Fed. 48; Scldraore v. Milwaukee. L. S. & W. R.v. Co. (Win.)
61 N. W. 705; Coal Creek Min, Co. v. Davis, 90 Tenn. 711. 18 S. W. 387
(where defendant assumed the risk cf suffocation from smoke in a mine).
And see Baltimore & P. R. Co. v. State, 75 Md. 152, 23 Atl. 310; Paule v.
Florence Min. Co.. 80 \Vi». 350, 50 N. W. 189 (where a "trammer," assist-
ing In work on the roof of a "stope," was injured by falling rock), ^listln-
guishing GUI v. Homrighausen, 70 Wis. 634, 48 N. W, 802; Brooks v.
Northern Pac. R. Co.. 47 Fed. 087 (where the drawhead was manifestly
and dangerously short); Rutledge v. Missouri Pac. Ry. Co., 110 Mo. 312»
19 8. W. 38 (ordinary movement of train); Berrigan v. Railroad Co., 131
N. Y. 582. 30 N. E. 57; Mobile & O. R. Co. v. George, 94 Ala. 199, 10 South.
145 (giving shick); Louisville & N. R. Co. v. Banks (Ala.) 10 South. 547.

1018 MASTER AND SERVANT. [Ch. l3

gineer working on a mountain division does not assume the risks
of faulty construction and maintenance of the road, whereby sand
and gravel accumulate on the track, and cause derailment of engine,
and his injury.^®^

Rules,

If an employ^ has assented to certain reasonable rules of his
master, his conduct must conform to them, and, if his damage com-
plained of is the consequence of their violation he cannot i^ecover.*®*
Such assent is not objectionable as being an illegal limit on the
master's liability for negligence. Thus, if the rules of a railroad
company forbid coupling without the use of a stick, and a servant
is injured while undertaking to make a coupling without a stick, he
cannot recover.^^* But an employ^ is not bound by such a rule
unless it is actually or constructively brought to his attention.^**
However, if, with the actual or constructive acquiescence of the

107 Union Pac. Ry. Co. v. O'Brien, 1 C. C. A. 354, 49 Fed. 538; MoHie
Gibson Consol. Mining & MiUing Co. v. Sliai'p (Colo. App.) 38 Pac. 850;
St Louis, A. & T. H. R. Co. v. Holman, 155 IH. 21. 39 N. K. 573.

108 Mason V. Richmond & D. R. Co., 114 N. C. 718, 19 S. B. 362; .Johnson
V. Chesapeake & O. Ry. Co., 38 W. Va. 200, 18 S. B. 573 (coupling moving
cars); Richmond & D. R. Co. v. Dudley, 90 Va. 304, 18 S. B. 274 (allowing
e-ars to go down grade without engine).

io» Russell V. Richmond & D. R. Co., 47 Fed. 204; Norfolk & W. R. Ck>.
V. Briggs (Ya.) 14 S. B. 753; Lake Erie & W. R. Co. v. :^Iugg, 132 Ind. 108,
31 N. E. 5G4; Richmond & D. R. Co. v. Williams, 88 Ga. 16, 14 S. E. 120;
Ford V. Chicago, R. L & P. Ry. Co. (Iowa) 59 N. W. 5; Bennett v. Northern
Pac R. Co., 2 N. D. 112. 49 N. W. 408; McGrath v. New York & N. E. R.
Co., 15 R. I. 95, 22 Atl. 927 (where there was failure to put out signal flags
to protect trackman against coming trains). Et vide Knight v. Cooper, 30
W. Va. 232, 14 S. E. 9W; Francis v. Kansas City, St. J. & C. B. R. Co., 110
Mo. 387, 19 S. W. 935 (where, contrary to rules, plaintiff, standing In mid-
dle of track, jumped on, and was injured by moving engine).

110 Fay V. Minneapolis & St. L. Ry. Co., 30 Minn. 231, 15 N. W. 241. And.
generally, see Central R. R. of Georgia v. Ryals, 84 Ga. 420, 11 S. E. 499.
Railroad switchmen who, in violation of a rule of the company, habitually
board moving switch engines from the middle of the track by stepping on
the footboard of the engine as it approaches, assume the risks ordinarily inci-
dent thereto, but do not assume the danger of injury from incompetency of
the engineer. Francis v. Kansas City, St. J. & C. B. R. Co. (Mo. Sup.) 28 S.
W. 842. As to when a rule is brought to the servant's notice, see La Croy v.
New York, L. E. & W. R. Co., 132 N. Y. 570, 30 N. E. 391. As to their mla-

Oh. 13] ASSUMPTION OF RISK BY SERVANT. 1019

master, the rule is habitually ignored, the master may be liable.^ ^*
On the same principle, a brakeman may assume the risk occasioned
by the running of a train at a rate of speed greater than is allowed
by an ordinance, if such violation is customary."*

SAME—EXTBAOBDINABY BISKS.

284. The servant cannot recover from his employer for
damages consequent upon extraordinary risks ^w^hich
he has knowingly assumed.

A servant cannot recover against his master for personal injury
resulting from manifestly defective and dangerous appliances ^^* or

oonstruction, see Harris* AdmY v. Norfolk & W. R. Co., 88 Va. 560, 14 S. B.
535. As to cases in which the rule does not apply, see Richmond & D. R.
Co. V. Mitchell, 92 Ga. 77, 18 S. E. 290.

111 Northern Pac. R. Co. v. Nickels, 1 C. C. A. G25, 50 Fed. 718. Nor where
directed by his superior. Hannah v. Connecticut River R. Co., 154 Moss.
529, 28 N. E. 682. Nor where the only way the work could be done was by
violation of rule. Memphis & C. R. Co. v. Graham, 94 Ala. 545. 10 South.
283. Where a rule of a railway company had been habitually disri'sai-ded
by its employes, and officers of the company had witnessed its violation, the
question of whether the officers had knowledge of and had approved of its
disregard was for the jury. White v. Louisville, N. O. & T. Ry. Co. (Miss.)
16 South. 248; Newport News & M. V. R. Co. v. Campbell (Ky.) 25 S. W.
267; Lowe v. Chicago, St. P., M. & O. R. Co. (Iowa) 50 N. W. 519; Richmond
& D. R. Co. V. Hissong. 97 Ala. 187, 13 South. 209.

112 Abbott V. McCadden, 81 Wis. 503, 51 N. W. 1079; Bengtson v. Chicago,
St P., M. & O. Ry. Co., 47 Minn. 486, 50 N. W. 531. And his contributory
negligence may exist, although the conductor assented to the violation of the
rule. Atchison, T. & S. F. R. Co. v. Reesman, 9 C. 0. A. 20, 60 Fed. 370;
Richmond & D. R. Co. v. Rush. 71 Miss. 987, 15 South. 133; Lehigh Val. R.
Co. V. Snyder, 56 N. J. Law, 326, 28 Atl. 376.

118 Texas & P. Ry. Co. v. Rogei-s, 6 C. C. A. 403, 57 Fed. 378; Clark v. St.
Paul & S. C. R. Co., 28 Minn. 128, 9 N, W. 581; Louisville, E, & Sf. L. C. R.
Co. V. Allen, 47 111. App. 405; Rooney v. Sewall & Day Cordage Co., 161 Mass.
153, 36 N. B. 789; Hatter v. lUinois Cent. R. Co.. 69 Miss. 012, 13 SouUi. S27.
Cf. Texas & P. R. Co. v. Minnick. 6 C. C. A. 387, 57 Fed. 362; Bradshaw's
Adm'r v. Louisville & N. R. Co. (Ky.) 21 S. W. 346; Wheeler v. Berry, O."*
Mich. 250, 54 N. W. 876 (where the work was without the scope of employ-
ment, and plaintiff protested). Et vide Southern Kan. Ry. Co. v. Mooro,
49 Kan. 616, 31 Pac. 138; White v. Wittemann Lith. Co., 131 N. Y. 631, 30
N. E. 230 (meddling with unguarded machinerj-).

1020 MASTER AND SERVANT. [Ch. 13

places,"* especially when warned. This is sometimes put on the
ground of waiver and sometimes on the ground of contributory neg-
ligence.^^' But he does not assume such extraordinary risks unless
he has knowledge, actual or constructive, of the dajiger."' If, how-
ever, he voluntarily, without any expressed or implied direction
from his employer, undertakes hazardous work, he cannot com-
plain.^^^ Thus, where a brakeman, standing in front of cars on &
repair track originally marked "In bad order," but at the time with-
out such mark, took hold of the brake staff, and stepped on the
brake beam to get out of the way, and the brake staff broke, and the
brakeman was killed, it was held that he had assumed the risk.^^'
So a trackman, whose duty it is to watch for and protect himself
against wild trains, assumes the danger of a collision between a
wild train and a hand car which he is pushing.^ ^*

11* Smith V. Winona & St. P. R. Co., 42 Minn. 87, 43 N. W. 968 (where a
brakeman was notified of a dangerous pile of stones, he was held to be
unable to recover damage on being knocked off the car thereby). Hammer-
ing a steam radiator despite warning. MoeUer v. Brewster, 131 N. Y. 600,
30 N. E. 124. A watchman of a building known to be dangerously dUapidated
assumes the risk. Paland v. Chicago, St L. & N. O. R. Co., 44 La. Ann.
1003, 11 South. 707. So, where the servant willfully encounters ^>Jiown dan-
gers. Knight V. Cooper, 36 W. Va. 232, 14 S. E. 999. Et vide Halfey v. Lum-
ber Co., 81 Wis, 412, 51 N. W. 326, 956 (wrecking a logging train); Lasky v.
Canadian Pac. Ry. Co., 83 Me. 461, 22 Atl. 367.

115 Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 249, 17 N. W. 378.

110 Richland's Iron Co. v. Elkins, 90 Va. 249, 17 S. E. 890. If defendant
actually inspected the road, and knew of defect which caused his injury, he
assumes it. Evansville & R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092.

117 Goff V. Chippewa River & M. Ry. Co., 86 Wis. 237, 56 N. W. 465. As
where section hand works where no one can give him notice of approaching
train. Rutherford v. Chicago, M. & St. P. Ry. Co. (Minn.) 59 N. W. 302.

ii« Kelley v. Railway Co., 35 Minn. 490, 29 N. W. 173; Rodney v. St. Louis
S. W. Ry. Co. (Mo. Sup.) 28 S. W. 887; Rooney v. Carson, 161 Pa. St 26, 28
Atl. 996. And, generally, see Dumas v. Stone, 65 Vt. 442, 25 Atl. 1097.

110 Sullivan v. Fitchburg R. Co., 161 Mass. 125, 36 N. E. 751.

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1021

SAME—EXCEPTIONS.

286. But the principles as to assuinption of risk do not
apply—

(a) Where the servant may know of the defect or dan-

ger, but does not necessarily or reasonably know
of or appreciate the consequent risk.

(b) Where the injured servant was, without proper notice

of increased risk, put to a service outside of and more
dangerous than the employment for which he was
engaged. This exception has been particularly ap-
plied to the employment of persons of immature
age.'*

(c) Where the master has clearly promised the servant

to remove the peril, unless the damage be so im-
mediate and imminent that an ordinarily prudent
man would not continue in the service; and not
then

(d) Where the duty to continue in the dangerous serv-

ice is required or justified by an emergency ap-
proved by law.

(e) Where the assumption of risk by the servant cannot

be held to be voluntary.

Appreciation of A'iVi.

Knowledge of defect or imperfection is not necessarily knowledge
of risk. The servant is not bound to inspect the risk as closely as
his master. He has a right to presume that his master will do his
duty.^** He does not necessarily assume the risk incident to the
use of unsafe instrumentalities because he knows its character and
condition. It is necessary also that he understands, or by the ex-
ercise of common observation ought to have known, the risk to
which he was exposed by its use. Before he can be held to have
assumed the risk, it must appear that he knew all the facts mate-
rial to the risk, and appreciated and underatood It"* Thus, if a

120 Pierce, R. R. 379.

lai Ante, p. 1002, note 52.

122 Steen v. St Paul & D. R. Co., 37 Minn. 310, 34 N. W. 113; HunRorford

1022 MASTER AND SKUVANT. [Ch. 1^

servant undertook to couple a baj2:gage ear having a Miller coupler
to an engine with an ordinary freight coupler, it was held to be a
question of fact whether such servant did understand, or ought ta
have understood, the risks as well as the peculiarities of the insti'u-
mentalities with which he worked.^ *^ On the other hand, a boy who
has lived near the sea shore all his life is held to know and appre-
ci.ate that there might be danger of getting entangled in the loose
end of a taut rope."* Knowledge of imperfection or danger, as
well as appreciation of risk, is affected by the experience and age
of the parties."* Appreciation and assumption of risk are ordi-

V. Chicago, M. & St P. Ry. Co., 41 Minn, 444, 43 N. W. 324. But a brakeman
who, in order to get emplosriuent as such, has pretended to an experience
which he has not, and, being ordered onto a flat car to puU the pin for a run-
ning switch, instead of lying down on the rear end of the car, kneels down,
and in that position is Jerked off by the sudden start of the engine after the
uncoupling, has no cause of action against the company. Stanley v. Chicago
& W. M. Ry. Co., 101 Mich. 202, 59 N. W. 393.

i23RusseU V. Minneapolis & St L. R. Co., 32 Minn. 230, 20 N. W. 147;
Reynolds v. Boston & M. R. Co., 64 Vt 66, 24 Atl. 134. Under many circum-
stances, however, the risk of making unmatched couplings may be held, as
a matter of law, to have been assumed by the servant. Kohn v. McNulta,
147 U. S. 238, 13 Sup. Ct 298, and cases cited. Further, see Norfolk & W.
R. Co. V. McDonald's Adm'r, 88 Va. 352, 13 S, E. 706; Thomas v. Missouri
Pac. R. Co., 109 Mo., 187, 18 S. W. 980 (following Hulett's Case, 67 Mo. 239);
Pittsburg & L. E. R. Co. v. Heuly, 48 Ohio St 608, 29 N. E. 575. The cases,
however, fuUy sustain the proposition that a person cannot be said to take
a risk, unless he knows, not only the condition of the thing, but also that a
danger exists in such condition. Coombs v. New Bedford Cordage Co., 102
Mass. 572-596; Mellor v. Merchants' ManuTg Co., 150 Mass. 362, 23 N. E.
100; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573.

124 Williams v. ChurchiU, 137 Mass. 243. So, where plaintiff uses a plat-
form for weeks without objection, he is able to appreciate the risk arising
from its defective width. Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, 34
N. E. 901. Cf. Prendible v, Connecticut River Manuf'g Co., 160 Mass. 131, 35
N. E. 675. A man of 25 must take notice of the law of gravitation, and as-
sumes the risk of moving a heavy stone. Walsh v. St Paul & D. R. Oa, 27
Minn. 367, 8 N. W 145.

125 Alcorn v. Chicago & A. Ry. Co., 108 Mo. 81, 18 S. W. 188 (unblocked
switch rails); Northern Pac. Coal Co. v. Richmond, 7 C. C. A. 485, 58 Fed.
756. Cf. Greenway v. Conroy, 160 Pa. St 185, 28 AU. 692 (where it was held
that a minor does not assume a risk), with Ogley v. Miles, 139 N. Y. 458^ 34

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1023

narilj questions of fact "• for the jury,*'^ and suggestion of danger
by appearance of machinery is for the jury, and not for experts.^*'

Other Modifications,

Similarly, a servant does not assume a risk when it could be as-
certained by inspection, and he has no chance to make the neces-
sary inspection.^^* So knowledge of the risk of the employment
does not constitute an assumption of that risk unless it comes in
time to be of use in avoiding danger.^ *^ But the risk must be a
reasonable one. A servant does not assume all the risks, known
and unknown, which could possibly result from any conceivable act
or negligence on part of the master/'^ nor unknown risks not ordi-

*

N. B. 1059 (where it was held that he did). And cf. Williamson v. S. Marble
Works, 26 AtL 6C0, with Toledo, St. L. & K. C. R. Co. v. Trimble, 8 Ind.
App. 333, 35 N. E. 716. Et vide International & G. N. Ry. Co. v. Hinzie, 82
Tex. 623, 18 S. W. 681; Evansville & R. R. Co. v. Henderson, 134 Ind. 636,
33 N. E. 1021; Beckliam v. Hilller, 47 N. J. Law, 12; Pennsylvania Co. v.
Congdon, 134 Ind. 226, 33 N. E. 795. And see ante, p. 1002, "Warning to
Inexperienced and Youthful Employ^,*' and "Standard of Care, Whether Ab-
solute."

126 But the court sometimes takes the case from the jury. Ogley v. Miles,
139 N. Y. 458v 34 N. E. 1059; St. Louis, A. & T. R. Co. v. Torrey, 58 Ark.
217, 24 S. W. 244.

12T Clarke v. Holmes, 7 Hurl. & N. 937; Mellors v. Shaws, 1 Best & S. 437;
Whart Neff. § 217; Ingerman v. Moore, 90 Cal. 410, 27 Pac. 306; Coombs v.
New Bedford Cordage Co., 102 Mass. 572; Haley v. Case, 142 Mass. 316, 7
N. E. 877; Ferren v. Old Colony R. Co., 143 Mass. 197, 9 N. E. 608, and cases
page 200, 143 Mass., aud page 60S, 9 N. E.; Chopin v. Badger Paper Co., 83
Wis. 102, 53 N. W. 452; Coif v. Chicago, St. P., M. &; O. Ry. Co., 87 Wis. 273, 58
N. W. 408; Craver v. Christian, 36 Minn. 413, 31 N. W. 457; McDonald v.
Chicago, St. P., M. & O. Ky. Co., 41 Minn. 439, 43 N. W. 380; Hungerford
V. Chicago, M. & St P. Ry. Co., 41 Minn. 444, 43 N. W. 324.

i2« Goodsell V. Taylor, 41 Minn. 207, 42 N. W. 873. The jury passes on the
question whether the plaintiff was justified in believing that defendant*8
servants could do his work properly. New York & T. S. S. Co. v. Anderson,
1 C. C. A. 529, 50 Fed. 462.

129 Cook V. St. Paul, M. & M. Ry. Co.. 34 Minn. 45, 24 N. W. 311. Et vide
Consolidated Coal Co. of St. Louis v. Haenni, 146 111. 614, 35 N. E. 162; Chi-
cago, St. L. & P. R. Co. V. Frey, 131 Ind. 319, 28 N. E. 989.

180 LouIsvlUe & N. R. Co. v. Kelly, 11 C. C. A. 260. 63 Fed. 407.

181 Hall V. Chicago, B. & N. R. Co., 46 Minn. 4;i9, 49 N. W, 239; Cris-
weU V. Pittsburgh, St L. & C. Ry. Co., 30 W. Va. 798, 6 S. E. 31.

1024 MASTER AND SERVANT. [Ch. 13

narily and usually incidental to the class of oi)erations in which he
is engaged.^**

Assumption of Risk as Affected by Original Services.

Most of the cases as to assumption of risk refer to risks assumed
on entering the ser^ce. The tendency of recent decisions is to hold
that, in regard to dangers growing out of the master's negligence
which are not covered by the implied contract between the master
and servant when the service was undertaken, it is a question of
fact, to be independently decided, whether a servant who works on,
appreciating the risk, assumes it voluntarily, or endures it because
he feels constrained so to do.^^' "If a servant of full age and ordi-
nary intelligence, upon being required by his master to perform other
duties more dangerous and complicated than those embraced in his
original hiring, undertakes such duties knowing their dangerous
character, although unwillingly and from fear of losing his employ-
ment, and he is injured, he cannot maintain an action for the in-
jury/' *•* So a servant who voluntarily, and without direction from

132 As those peculiar to the operation of a particular mine, Bergjniist v.
Chandler Iron Co., 49 Minn. 511, 52 N. W. 136. The servant does not assume
the risk of negligent direction of work. Schroeder v. Chicago & A. R. Co.,
108 Mo. 322, 18 S. W. 10»4. Et vide Nail v. Louisville^ N. A. & C. Ry. Co.,
129 Ind. 2C0, 28 N. E. 183, 611. Where the evidence, in an action for the
death of a workman by a fall from a defective staging in a grain elevator,
showed that the defect was a knot In a plank, and that the deceased could
not possibly have seen it, by reason of the darkness, no contributory negU-
gence is established. Bright v. Bamett & Record Co., 88 Wis. 299, 60 N. W.
418. In an action by an employs for injuries caused by the fall of an elevator,
it was proper to allow plointUf to state whether he had ever been advised
of or knew the condition of the elevator, as to its being safe or unsafe. Mc-
Gonigle V. Kane (Colo. Sup.) 38 P. 307. A freight car was left standing on
a side track without sufficient brakes to hold It. Started by its weight, or
wind, it moved down, and injured plaintiff. This was held to be a natural
perU of the service. Henry v. Wabash West Ry. Co., 109 Mo. 488, 19 &
W. 239.

133 Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 46-1;
Mahoney v. Dore, 155 Mass. 513, 30 N. E. 306; Orman v. Manuix, 17 Colo.
564, 30 Pac. 1037.

184 Leary v. Boston & A. R. Co., 139 Mass. 580, 2 N. E. 115; Hogau v.
Northern Pac. R. Co., 53 Fed. 519. See cases collected in 11 Am. & Eng. Euc.
Law, p. 859, note 1,

Ch. 13] ASSUMPTION OP RISK BY SERVANT. 1025

the master, goes into hazardous work outside of his contract, as-
sumes the consequent risk."*

However, in Smith v. Baker ^'® a servant continued in a work
which exposed him to danger resulting from his employer's negli-
gence, and fullj understood and appreciated by him. It was held
that he did not assume this risk by his implied contract when he
entered into the service, and that he did not, as a matter of law, as-
sume it by merely remaining in a place which his master's fault had
made dangerous.

But, while the American cases have scarcely gone so far as this,
they do distinguish between the danger of the service into which
the servant originally entered and subsequent work which he may
be directed to, and may actually, undertake. The implied assump-
tion of risk does not apply to work outside the scope of original em-
ployment where there are dangers peculiar to it, and unfamiliar to
the servant^*^ And it is a universally recognized principle that
where a youthful and inexperienced employ^ is, without his parents'
consent, put to work more difficult and more dangerous than
that for which he is employed, the risks are not assumed.^'® The
parent is negligent who allows his child to be employed in a danger-
ous place, as a mine, without stipulating for employment that will

"B^Plttsburgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 5 N. E. 187;
Wonaen v. Maine Cent. R. Co., 79 Me. 397-410, 10 Atl. 49; Prentiss v. Kent
Furniture Manufg Co., 63 Mich. 47&-482, 30 N. W. 109.

186 [1891] App. Cas. 325; Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366;.
O'Maley v. South Boston GasUght Co., 158 Mass. 136, 32 N. E. 1119.

13T Ft. Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106; Consolidated
Coal Co. V. Haennl, 48 lU App. 115, affirmed 146 111. 614, 35 N. E. 1U2
(where a blacksmith was suddenly called from his shop to assist In hoisting
a heavy smokestack, wi1;hout a chance to inspect hoisting apparatus) ; Boet-
tger V. Scherpe & Koken Architectural Iron Co., 124 Mo. 87, 27 S. W. 466,
(where the question was whether the selection of lumber for scaffold was un-
usual course of employment He did not under such circumstances assume
the negligence of a fellow senrant In the new employment); I^lor v. Chi-
cago, B. & Q. R. Co., 52 IlL 401; Michael v. Roanoke Mach. Works, 90 Va.
492, 19 S. E. 261. However, tf the servant is Instructed as to and familiar
with th9 dangers and use of the outside work (as of a saw), he assumes the
risk. Wheeler v. Berry, 95 Mich. 250, 54 N. W. 876.

138 Union Pac. R. Co. v. Fort, 17 Wall. 553; Id., 2 Dill. 250, Fed. Cas. No.
4,952; Northern Pac. Coal Co. v. Richmond, 7 C. C. A. 485, 58 Fed. 756.

LAW OF TOKTS— 65

1026 MASTER AND SERVANT. [Ch. IS

■

not expose him to danger disproportioned to his years and expe-
rience."*

Promise to Remedy,

If the servant, on discovering the danger, complain thereof to the
master, and the master directs the servant to continue his employ-
ment notwithstanding, and promises to remedy the danger, the serv-
ant can sue for damages resulting from such danger.^*" The lead-
ing case on this familiar rule is Hough v. Railway Co.^** In thi»
case the plaintiff was injured by an accident which happened because
of the defect in the whistle which allowed steam to escape over him
when the accident occurred, and because of the defective condition
of the cow-catcher. The plaintiif did not know of the defect in the
whistle, but did know of the defective condition of the cowcatcher^
and had complained thereof to both master mechanic and foreman
of the roundhouse. They had promised that it would be properly
remedied. The court accepts' as well established the English and
American rule, as follows: "If the servant [of such company] note»
the defects in machinery, gives notice thereof to the proper officer,
and is promised that they shall be remedied, his subsequent use of
it, in the well-grounded belief that it will be put in proper condition
within a reasonable time, does not necessarily, as a matter of law,
make him guilty of contributory negligence. It is a question for the
jury whether in relying upon such promise, and using the machinery
after he knew its defective or insufficient condition, he was in the ex-
ercise of due care. The burden of proof in such a case is upon the
company to show contributory negligence."

But it must appear that the master, and not some unauthorized

130 Weaver v. Iselin, 161 Pa. St 386, 29 Atl. 49 (a mine).

140 This principle applies to appliances and place. Hough v. Texa.s & P.
Ry. Co., 100 U. S. 213; Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248,
17 N. W. 378; Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 33 N. W. 551;
Lyberg v. NorUiem Pac. R. Co., 39 Minn. 15, 38 N, W. 632.

1*1 100 U. S. 213. Et vide New Jersey & N. Y. R. Co. v. Young, 1 C. C. A.
428, 49 Fed. 723; Indianapolis & St. L. Ry. Co. v. Watson, 114 Ind. 20-27,
14 N. E. 721, and 15 N. E. 824; Chicago Drop Forge & Foundry Co. T. Van
Dam, 149 Ul. 337, 30 N. E. 1024; Schiitz v. Pabst Brewing Co. (Minn.) 59 N.
W. 188.

Ch. 13] ASSl'MPTION OF RISK BY SERVANT. 1027

person, made the promise to repair/** and the promise must be
clear.*** There is, however, a limit to this rule. If the instru-
mentalities of place are so defective and dangerous, imminently and
immediately, that a man of ordinary prudence would have refused
to continue work, the servant is negligent,***

Jxisiificaiion in Law.

But the servant is not bound to give up his employment merely be-
cause his master directs him to undertake extraordinarily hazardous
work. He has a right to have his fears allayed by judgment of his
master, involved in command. Thus, if a laborer employed to un-
load cars is directed by his master to couple cars, and, while so doing,
has his hands crushed, he can recover.*** This is especially true
when the unusual danger is not apparent to a mind like the serv-
ant's.**® If, however, the call to do unusual work is for a fore-
man's personal benefit, the company is not liable.**^ A fortiori, in
many cases the public interest is a good reason for the obedience on
the part of servants to the direction of the employer to under-

142 Chesapeake & O. S. W. R. Co. v. McDoweU (Ky.) 24 S. W. GOT; Ehmcke
V. Porter, 45 Minn. 338, 47 N. W. 1066.

148 Wilson V. Winona & St. P. R. Co., 37 Minn. 326, 33 N. W. 908. A mere
acknowledgment of defect, with comment that he (the master) was busy,
is not a promise to remedy. Breig v. Chicago, W. & M. Ry. Co., 08 Mich.
222, 57 N. W. lis. But see Indianapolis Union Ry. Co. v. Ott (Ind. App.)
38 N. E. 842; Rotheuberger v. Northwestern Consol. Milling Co. (Minn.) 5{>
N. W. 531. Where there Is complaint without redress within a reasonable
time, employ6 cannot recover. Mwbach y. Home Mln.Co., 53 Kan. 731, 37
I'ac. 122. But mere complaint (e. g. of an unmanageable horse) Is not
enough. Mahan v. Clee, 87 Mich. ICl, 49 N. W. 556.

1** Greene v. Minneapolis & St L. Ry. Co., 31 Minn. 248, 17 N. W. 37S;
RusseU V. Tlllotson, 140 Mass. 201, 4 N. E. 231; Indianapolis Union Ry. Co.
V. Ott (Ind. App.) 35 N. B. 517, 38 N. E. 842.

1*5 Lalor V. Chicago, B. &, Q. By. Co., 52 lU. 401. Et vide Jackson v. Geor-
gia R. Co., 77 Ga. 82. But cf. Leary v. Boston & A. R. Co., 139 Mass. 580,
2 N. B. 116, and Wormell v. Maine Cent. R. Co., 79 Me. 397-410, 10 Atl. 49.
But an employ^ who, knowing that men inside a box car. unloading ties,
had not been warned of his approach, attempted to pass near the car with-
out cautioning the men, and was struck by a tie, was guilty of contribu-
tory negUgence, though his orders required him to pass the car and to
"hurry." Thoman v. Chicago & N. W. Ry. Co. (Iowa) 60 N. W. 612.

146 Colorado M. Ry. Co. v. O'Brien, 16 Colo. 219, 27 Pac. 701.

147 Hurst V. Chicago, R. I. & P. R. Co., 49 Iowa, 76.

1028 MASTEK AND SERVANT. [Ch. 13

take unusual risk. Thus, in Campbell v. Railroad Co.*** a hand car
was run ahead of a train past due. The court said: "There is, of
course, more than ordinary danger in operating a hand car upon a
track where a train is past due from either direction. Yet, we have
no doubt it is sometimes necessary that this should be done. If sec-
tion hands should refrain from going upon the road at such times,
the road would be uninspected no inconsiderable portion of the time.
Tlie necessity of inspection and repairs must be as great when the
trains are past due as at any other time. Indeed, it must often be
greater. ♦ ♦ ♦ The safety of passengers requires that vigilance
respecting the roadbed should not be relaxed at all tim js when
trains are past due.'*

Assumption not Properly Voluntary,

As has been shown, the maxim 'Volenti non fit injuria" does not
apply where there is no real exercise of option in conduct. A specific
application of this general principle is made to the risks assumed by
a servant If a seaman is by statute bound to obey orders, he does
not assume the risks incident to operating an uncovered winch, in
compliance with the command of his superior officer.**" So, a con-
vict working under a contract does not assume the risks of a danger-
ous place, even if those risks be known to him, because his move-
ments are controlled by a guard.**** On the same principle, if the
servant is, by the wrong of the master, placed in a position of immi-

1*9 45 Iowa, 76. Et vide Frandsen v. Chlcagro, R. I. & P. R. Co., 36 Iowa,
372; Schroeder v. Chicago & A. Ry. Co., 108 Mo. 322, 18 S. W. 1094. A serv-
ant may rely on a vice principal's promise to protect him notwithstanding a
violation of a rule where there is an emergency. Moore v. Wabash, St. L. &
P. R. Co., 85 Mo. 5SS. Cf. Kansas City, Ft S. & M. R. Co. v. Hammond,
58 Ark. 324, 24 S. W. 723. And see Fox v. Chicago, St P. & K. C. R. Co.,
8G Iowa, 3(58, 53 N. W. 239; Kast Tennessee. V. & G. Ry. Co. v. Bridges, 92
Ga. 399, 17 S. E. 045. An ciij:iiieer discovering defects after commencement of
trip Is not necessarily negligent in not iiinned lately abandoning same. For-
dyce V. Edwards (Ark.) 30 S. W. 758. Where plaintiff, a brakeman acting
nnder orders from his superior, attempted to couple cars, knowing that a pas-
senger train was soon due, and that unless the coupling was made there would
be danger of collision, his knowledge of defects In a pilot bar used In coupling
will not preclude a recovery for Injuries caused thereby. Strong v. Iowa Cent.
Ry. Co. (Iowa) 62 N. W. 799.

140 Eldrldge v. Atlas S. S. Co., 134 N. Y. 1S7, ;?2 N. E. 66.

130 Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S. E. 1015.

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1029

nent peril, lie is not J^uilty of contributory nej^lip^ence if, in his en-
deavor to escape dangers for which the master provided no escape,
he takes the means to preserve his life which result in his death.^^^

SAME—BISE OF FELLOW SEBVANTS.

286. "A servant, when lie engages to serve a master, un-
dertakes, as between himself and his master, to run
all the ordinary risks of the service, including the
risk of negligence upon the part of a fellow servant

when he is acting in the discharge of his duty as
servant of him who is the common master to
both," ^^ unless,

(a) The master's negligence in the employment of such

fellow servant, or

(b) His wrong in some other respect, was the juridical

cause of the injury.

The rnle as to fellow servants is of modern origin, and is judge-
made law. The earliest case on the point is said to be Priestly v.
Fowler (1837).^*' This is regarded as not strictly a fellow-servant
case, at all.^** English courts, however, consider it the first case.^"
The rule was first indisputal)ly enunciated in 1841, in a South Car-
olina case (Murray v. Bailroad Co.).^*^' The opinion, however, which

iBiThls was applied In Louisville & N. R. Co. v. Shiveira Adm'r (Ky.)
18 S. W. 944, to this set of facts. Plaintiff's Intestate was endeavoring to
remove driftwood lodged against defendant's temporary bridge. The bridge
was In imminent danger of giving way. The bridge gave way, and defend-
ant, to save his life, swam ashore. Other workmen escaped by remaining
on part of the drift which remained stationary. Plaintiff's Intestate was
drowned, but recovery was allowed. And see Schmidt v. Montana Gent Ry.
Co. (Mont.) 38 Tac. 22G.

102 Tuuney v. Midland Ry. Co. (18G6) L. R. 1 C. P. 291-296. And see Lov-
eUv. HoweU (1876) 1 C. P. Dlv. 161-167.

153 3 Mees. & W. 1. In 1850 (Hutchinson v. Railway Co., 5 Exch. 343) the
English courts adopted the rule fully and completely. See, also, Wlgmore v.
Jay, Id. 354.

154 24 Am. Law Rev. 179.

155 Griffiths V. Earl of Dudley, 9 Q. B. Dlv. 357^65.
i5« 1 McMul. (S. O.) 385.

1030 MASTER AND SERVANT. [Ch. 13

really established the doctrine, was that of Chief Justice Shaw in
Farwell v. Boston & W. R. Co., in 1842."^ In 1858 the Scottish
courts adopted the rule, and in the case of Bartonshill Coal Co. v.
Reid ^^^ reported in full Chief Justice Shaw's masterly judgment

Adoption of the Rule.

Tlie rule as to master and servant thus came to be accepted by
the English-speaking people. It is unknown, however, beyond them.***
The doctrine of FarwelFs Case has never been judicially denied in
Great Britain. Justice Gray*'® has called attention to two cases
having a tendency to support the opposite conclusion, — one in Ten-
nesKot%*°* and another in Wisconsin.*** The latter case has been
ov(Mruled.*®^ Other courts have excef)ted from the rule certain
cases.^°* Mr. Justice Brewer says, in its defense:*®' '*The princi-
ples in Farwell's Case may not be obviously and unquestionably
correct. They may be, ere long, entirely overthrown. But, if over-
thrown, it should be by legislative action, and not by judicial de-
cision. ♦ ♦ ♦ Farwell's Case may be limited by the legislatures,
but its general principle rests on reason and the nature of things,
and will remain. I cannot, however, doubt the soundness of the
utterance that after 50 years of almost universal acceptance it has
become incorporated into our general law, and that it is not with-
in the rightful competency of the judicial power either to overthrow
or to substantially sustain it" The federal courts, accordingly, rec-

1*7 4 Mete. (Mass.) 49.

188 3 Macq. 2GG. In Wilson v. Merry (1868) L. R. 1 H. L. So. 320. the rule was
extended to injuries caused to a workman by a foreman occupying a position
of superintendent in the same department.

i8»Pol. Torts, p. 85.

160 RandaU v. Baltimore & O. R. Co., 109 U. S. 478-484, 3 Sup. Ct. 322.

i«i Ilaynes v. East Tennessee & G. R. Co., 3 Cold. 222.

102 Chamberlain v. Milwaukee & M. R. Co. (1800) 11 Wis. 248.

103 Moseley v. Chamberlan« 18 Wis. 731; Cooper v. Milwaukee & P. Ry.
Co., 2:^ Wis. 0«8.

164 Gillenwater v. Madison & I. R. Co., 5 Ind. 339; Fitzpatrick v. New Al-
bany & S. R. Co., 7 Ind. 430; Little Miami R. Co. v. Stevens, 20 Ohio, 415;
Cleveland, C. & C. R. Co. v. Kerry, 3 Ohio St. 201.

165 Howard v. Denver & R. G. Uy. Co., 26 Fed. 837. A collection of cases
will be found in RandaU v. Baltimore & O. R. Co., 100 U. S. 478-484, 3 Sup.
Ct 322, In Mochom, Ag. $ G(»7, and in Wood, Mast. & Serv. § 427, note (L

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1031

ognized the general doctrine, and, when construing the common law
of a pai-ticular state on this point (in the absence of statute), they
regard the question as of construction of general contract of service,
and not as a rule of property. Tlierefore, under such circum-
«tances, local decisions do not control.^ ••

Reaoon of the Rule.

ITie doctrine of the assumption by the servant of the risk of the
negligence of his fellow servant is justified on several grounds.

Thus, it is urged that it is expedient to throw the risk on those
who can best guard against it,^°^ and that its moral effect tends to
tsecure the exercise of a greater degree of care and caution by em-
ploy ^.^®* However, the opposite rule would tend to secure greater
diligence on the part of the employer in securing the employ^ against
«uch danger.

It is more generally, and in addition, assigned as a reason, that
the servant enters into a contract with reference to, and impliedly
■assumes the risks resulting from, the negligence of his fellow serv-
ants.^** Ordinarily, however, there is no actual or real consent,
either expressed or implied, on the part of the servant, to such risks.
In the great majority of cases, he is likely to know nothing of such

loe Newport News & M. V. Co. v. Howe, 3 C. C. A. 121, 52 Fed. 362. As to
Kentucky rule that brakeman and engineer are not fellow servants, see Louis-
ville & N. R. Co. V. Brooks' Adm'x, 83 Ky. 131. And see Louisville & N. IL
€o. V. Brantley's Adm'r (Ky.) 28 S. W. 477.

i«T This was urged, inter alia, by Shaw, C. J., in Farwell v. Boston & W.
R. Corp., 4 Mete. (Mass.) 49. It is contended In argument by defendant in
error in Northern Pac. R. Co. v. Harably, 154 U. S., at page 352, 14 Sup. Ct. \)^l
that this was not a good reason when enunciated, and. when applied to rail-
road corporations of the present day, it Is entirely unfounded and misleading.

i«8 Sullivan V. Mississippi & M. R. Co., 11 Iowa, 421.

i«» "Strangers can hold the master liable for the negligence of a servant
about his business. But, in the case where the person Injured is himself a
servant in the same business, he is not in the same position as a stranger. He
has of his free will entered into the business, and made it his own. lie cannot
say to the master, *You shall so conduct your business as not to injure mc by
want of due care and caution therein*; for he has agreed with the master to
serve in that business, and his claims on the master depend on the contract of
service. Why should it be an implied term of that contract, not being an
express one, that the master shall indemnify him a^inst the negligence of a
fellow servant or any other current risk? It is leather to be implied that he

1032 MASTER AND SERVANT. [Ch. 13

rule, and is surprised, after dama|?e done, to learn of it. The rule,
therefore, cannot be said to be justified by any such implied promise
as is inferred from mere purchase and delivery of goods, to pay their
reasonable value. The rule is implied into the contract in this
sense: That a contract practically consists of three things: (a) Its
terms; (b) the law applicable to it, in existence, inter alia, at the
time of its execution; *^® and (c) the surrounding circumstances, in
the light of which it is to be explained and applied.^^^ Accordingly,
the established rule of law as to the assumption of the risk of the
negligence of a fellow servant is incorporated into the contract,
without reference to the knowledge or consent of the parties, just
as interest is added to a bare promise to pay.

As to the rule itself, thus incorporated, if it were the application
to the relationship of master and servant of the general principle
of assumption of risk by all persons, mutatis mutandis, no objection
would seem reasonable. Every person may assume risk, and pre-
vent recovery for consequent damages.

A servant should come under this rule, and be held to assume cer-
tain risks peculiar to his employment. But here arises the diffi-
culty, i. e. in changing th.e general doctrine of the assumption of
risk to meet changes in the relationship. The risk of negligence of
a fellow servant might have been at one time fairly classed as one
of the ordinary risks of the service. Employments were simple,
and not hazardous. Fellow servants were comparatively few in
number, and, as a rule, well known in the community. But the con-
contracted with the risk before his eyes, and that the dangers of the service,
taken aU round, were considered in fixing the rate of payment" Pol. Torts,
85. And see Pol. Jur. & Ethics, pp. 127, 128, 131, 133; Lord Cranworth. in
Bartonshill Coal Co. v. Reid, 3 Macq. 382; Cairns, L. C, in Wilson v. Merry,
L. R. 1 H. L. Sc. 326; Priest, D. J., in Martin v. Chicago & A. Ry. Co., 65 Fed.
384; Justice Field, in Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup.
Ct. 590; Justice Harlan, in Hough v. Texas & P. Ry. Co., 100 U. S. 213; Gib-
son V. Railroad Co., 46 Mo. 1C>3.

1-- Stnbl V. Mitchell, 41 Minn. 325, 43 N. AV. 385.

171 Thus, a custom may be Incorporated Into a contract Where a contract
of shipment b3' rail does not define what shall constitute a car load, a general
custom among railroad men and shippers, by which a car load is made to con-
sist of a certain number of pounds, governs the contract. Good t. Chicago,
R. I. & P. Ry. Co. (Iowa) 60 N. W. 631.

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1033

servatisni of the courts has preserved the rule, since its first bold
enunciation, when strict logic would have justified its modification
and adaptation to the changes in the risks to which it applies.
Present developments of steam and electricity; the wonderful speed,
the enormous weight, and marvelous power of modem machinery;
the great number of employes; the impossibility of knowing or as-
certaining their characters; the inability of men to estimate the
dangers to which they are exposed, — have brought it to pass that
the rule is felt to work great injustice and unjus^fiable hardship.
This feeling is especially justified inasmuch as the rights of the
servant seem to be almost the only ones not regulated by the general
law, and inasmuch as passengers, for example, find all presumptions
of law in their favor, and even strangers receive fair application of
general rules.^^* In some measure, the courts have met this feeling
by treating the assumption of risk as a question of fact, to be de-
termined by the jury, and by allowing the jury to determine the
relationship of fellow servant^^* However, as a matter of fact, in
a great many cases, courts decide the question as a matter of law.

In order that the fellow-servant rule should apply, it is necessary
that the complainant and the servant whose negligence causes the
wrong should have a common master.^^* It applies only where the

172 On this general subject Ikfr. David Gibbon says: "The common sense of
servants rebels against this law. Witness the many actions they liave brought.
The common sense of masters does not confirm it. When a servant is slain
or mutilated in a master's business, assisting to make his fortune, he feels
and knows that a claim on him arises different in. nature from that which a
sufferer by a calamity has upon the public. Some masters make compensa-
tion as a matter of right; others, whUe deploring the accident and not admit-
ting legal liability, are willing to make the servant a present. None recom-
mend the applicant to seek a general subscription, or mock him by telling him
that the wages he has received are the agreed compensation for his loss.'*
Note on "Negligence" in Gale. Easm. 429.

178 Wenona Coal Co. v. Holmquist, 152 lU. 581, 38 N. E. 9iG; Mexican Nat.
R. Co. V. Pinch (Tex. Civ. App.) 27 S. W. 1028; Northern Pac. Coal Co. v.
Richmond, 7 C. C. A. 48o, 58 Fed. 756; Lake Erie & W. R. Co. v. Middletou,
142 lU. 550, 32 N. E. 453.

174 Sullivan v. Tioga R. Co., 112 N. Y. 643, 20 N. B. 569; Sanford v. Stand-
ard OU Co., 118 N. Y. 574, 24 N. E. 313; Johnson v. Netherlands Am. Steam
Nav. Co., 132 N. Y. 676-578, 30 N. E. 505; Devlfai v. Smith, 89 N. Y. 470;
Catawissa R. Co. v. Armstrong, 49 Pa. St. 186; Johnson v. Spear, 76 Mich.
139, 42 N. W. 1092.

1034 MASTER AND SERVANT. [Ch. 13

servant sues his own master.* ^* Tberefore, damages to a servant
for injury to his wife produced by the negligence of a fellow servant
may be recovered from the employer.*'*

Where a servant in the general employ of one master is by him
placed temporarily under the order of another, to do the tatter's
work, the servant of the latter, and the servant so placed to work
with him, are fellow servants in that work, and neither master is
liable for the damages resulting to one of those servants from the
negligence of the other while performing the same.*'' The rule does
not apply where the employment is the same but the masters dif-
ferent*" And, if the master personally assist in the common work,

1" Smith V. New York & H. R. Co., 19 N. Y. 127-132; Young v. New York
Cent R. Co., 30 Barb. 220; Gerlach v. Edelmeyer, 88 N. Y. 645; Burke v.
Norwich & W. R. Co., 34 Conn. 124. Unless the person sought to be ren-
<lered liable for the negligence of his servant can show that the person so
necking to make him liable was held In his service, the defense of commoa
employment is not to him. Johnson v. Lindsay [18i)l] App. Cas. 3T1;
Cameron v. Nystrom [1893] 1 Reports, 362, App. Cas. 308. Et vide Abra-
ham V. Reynolds, 5 Hurl. & N. 142; Swainson v. Northeastern Ry. Co., 3 Exch.
Div. 341; TV^arburton v. Great Western Ry. Co., L. R. 2 Exch. 30; Farrant v.
Barnes, 11 C. B. (N. S.) 553.

170 Campbell v. Harris, 4 Tex. Civ. App. 630, 23 S. W. 35; Gannon v. Housa-
tonic R. R., 112 Mass. 234. And see Brown v. Sullivan, 71 Tex. 470, 10 S.
W. 288.

1" Cregan v. Marston, 126 N. Y. 573, 27 N. E. 952; Coyle v. Pierrepont, 33
Hun, 311; Burke v. De Castro & D. S. R. Co., 11 Hun, 354; Wlnterbottom
V. Wright, 10 Mees. & W. 109; Murray v. Currie, L. R. 6 C. P. 24; Tfie
Harold, 21 Fed. 428; The Islands, 28 Fed. 478; Illinois Cent. R. Co. v. Cox.
21 111. 20; Svenson v. Atlantic Mail S. S. Co., 57 N. Y. 108; Abraham v.
Reynolds, 5 Hurl. & N. 142. While a coal train of defendant railroad com-
pany, whose tracks ran over the docks of a coal company, was delivering
coal to the latter company, a brakcman of the coal company, engaged in
coupling cars of the train, was injured by the negligence of defendant*8 en-
gineer. Held, that such engineer was not a fellow employ^ of the injured
brakeman, he hot being under the power and direction of the coal company,
engaged exclusively in doing its work or "lent" to it for the occasion. (Ewan
V. Lippincott, 47 N. J. Law, 192; Johnson v. Boston, 118 Mass. 114; Rourke
V. White Moss Colliery Co., 46 Law J. C. P. 283,— distinguished.) Central
Railroad of New Jei-sey v. Stoermer, 2 C. C. A. 360, 51 Fed. 518.

178 Kelly V. Johnson, 128 Mass. 530; Louisville, N. O. & T. R. Co. v. Con-
roy, 63 Miss. 562; Phillips v. Chicago, M. & St. P. Ry. Co., 64 Wis. 475, 25
N. W. 544. As where servants of diffeient masters are engaged on tlie

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1035

he is liable to his employes for his negligence.*^* Where one per-
son lends his servant to another for a particular employment, the
servant, for anything done in that particular employment, must be
dealt with as a servant of the man to whom he is lent, although he
remains the general servant of the person who. lent him; and, if
the servant receives injuries in such employment from the negli-
gence of a servant of the person to whom he is lent, he cannot re-
cover therefor.**® The rule applies to volunteers.*®* A person who,
in the transaction of common interest, assists the servant of another
employer, with such employer's consent, however, has been held en-
titled to recovery for the latter's negligence.*** Servants of differ-
ent connecting lines are not fellow servants, whatever the agreement
between those connecting linee may be.**^ Servants of an employer

same building. Morgan v. Smith, 159 Mass. 570, 35 N. E. 101; Burrill v.
Eddy, 160 Mass. 198, 35 N. E. 483. And, generally, as to servants of dif-
ferent masters, see Conlan v. New York Cent. & H. R. R. Co., 74 Ilun, 115,
26 N. Y. Supp. 659; Robertson v. Boston & A. R. Co., IGO Muss. 101, 35 N.
E. 775; Union Pac. Ry. Co. v. Kelley, 4 Colo. App. 325, 35 Pac. 923; Alton
Lime & Cement Co. v. Calvey, 47 111. App. 343. A driver of a team was not
a fellow servant of one employed on city work, though they were working
to a common end, if, in backing the team, he was not under the control and
direction of the city foreman. Reagan v. Casey, 160 Mass. 374, 30 N. E. 58;
Gannon v. Housatonlc R. Co., 112 Mass. 334; Svenson v. Atlantic Mail S. S.
Co., 33 N. Y. Super. Ct. Rep. 277, affirmed 57 N. Y. 108; Devlin v. Smith.
89 N. Y. 470; Harkins v. Standard Sugar Refinery, 122 Mass. 400; .John-
son V. Spear, 76 Mich. 139, 42 N. W. 1092; Zeigler v. Danbury & N. R. Co.,
52 Conn. 513; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Stetler v.
Chicago & N. W, Ry. Co., 46 Wis. 497, 1 N. W. 112.

17 0 Ashwoi-th V. Stanwix, 3 El. & El. 701; Lorentz v. Robinson, 61 Md. 64;
Grand Trunk Ry. Cd. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493.

180 Hasty v. Sears, 157 Mass. 123, 31 N. E. 759.

i«i Potter V. Faulkner, 31 Law J. Q. B. 30; Holmes v. Northeastern Ry.
Co., L. R. 4 Exch. 254; Millsaps v. LouisviUe, N. O. & T. Ry. Co., 69 Miss.
423, 13 South. 696.

182 Eason v. Sabine & E. T. Ry. Co., 65 Tex. 577; Chicago, M. & St. P. Ry.
Co. V. West, 125 111. 320, 17 N. E. 788.

188 Sullivan v. .Tioga R. Co., 112 N. Y. 643, 20 N. E. 569; Catawissa R. Co.
V. Armstrong, 49 Pa. St. 180; Sawyer v. Rutland & B. R. Co., 27 Vt. .^70;
Stetler v. Chicago & N. W. R. Co., 46 Wis. 497, 1 N. W. 112; Smith v. New
York & H. R. Co., 19 N. Y. 127; Merrill v. Central Vt. R. Co.. 54 Vt. 200;
Connolly v. Davidson, 15 Minn. 519 (Gil. 428); Taylor v. West era Pac. R.

1036 MASTER AND SERVANT. [Ch. 13

and the servants of his independent contractors are not fellow serv-
ants,^®* nor are servants of a subcontractor fellow servants of the
contractor's employer.^**

287. The English courts determine the relationship of fel-
low servants by the test of common employment.

The English cases have rejected the doctrine of vice principal or
deputy master. Such a principle was apparently assumed in Mur-
phy V. Smith/*' but has been abandoned.^®^ 'T! cannot say that
Thomas (the manager of the mine) was here anything more than a
vice principal or manager, and he was therefore a fellow servant''
Mr. Pollock states the rule as to common employment as follows:
*^A11 persons engaged under the same employer for the purposes
of the same business, however different in detail those purposeti
may be, are fellow servants. The kind of work need not be the
same; the employer must be. They need not be engaged in the
same department of service, but they must be working for a com-
mon object" ^*® Thus, where the one in the employment of a rail-

CJo., 45 Cal. 323; Zeigler v. Danbury & N. R. Co., 52 Conn. 343; Gray v.
Philadelphia & R. R. Co., 24 Fed. 168.

1^4 Coughtry v. Globe Woolen Co., 56 N. Y. 124; Haas v, PhUadelphia &
S. M. S. S. Co., 88 Pa. St. 269; Cunningham v. International R. Co., 51 Tex.
503; Goodfellow v. Boston, H. & E. R. Co., 106 Mass. 461; Lake Superior
Iron Co. V. Erickson, 39 Mich. 492. And see Svenson v. Atlantic Mail S. S.
Co., 57 N. Y. 108; LoulsviUe, N. O. & T. R. Co. v. Conroy, 63 Miss. 562. But
see Ewan v. Lippincott, 47 N. J, Law, 192; Johnson v. City of Boston, lis
Mass. 114; lUinois Cent. R. Co. v. Cox, 21 111. 20; Charles v. Taylor, 3 C.
P. Div. 492.

185 Wiggett V. Fox, 11 Exch. 832; Murray v. Currie, L. R. 6 C. P. 24; Cur-
ley V. Harris, 11 Allen, 112.

is'Jl9 C. B. (N. S.) 361.

187 Smith, Mast. & S. 257; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Howells
V. Landore. etc., Steel Co. (1874) L. R. 10 Q. B. 62; The Petrel, 1 Pet. 651;
Thomp. Neg. 1026-1031.

188 Pol. Torts, 8G-88. Under statute, see Danizler v. De Bardeleben Coal
& Iron Co., 101 Ala. 309. 14 South. 10; Jenkins v. Richmond & D. R. Co.,
39 S. C. 507, 18 S. E. 182; Conley v. Portland, 78 Me. 217, 3 Atl. 658. In
25 Am. Law Ueg. 676, fellow servants are detined to be those who are (1)
employes of the same master, (2) under the same control, (3) in the same
conmion employment.

Ch. 13] ASSUMPTION OP RISK BY SERVANT. 1037

way company as carpenter to do any carpenter's work for the gen-
eral purposes of the company was standing on the scaffolding at
work on a shed close to the line of the railway, when some porters
in the senice of the company carelessly shifted an engine so that
it struck the support of the scaffolding, thereby throwing the car-
penter down and injuring him, the company was held not liable.^®*
The test is exceedingly unsatisfactory, because of the unavoidable
difficulty of determining what is a common employment. Tliis
varies with the circumstances of the case. And so the test is so
broad ae to be of doubtful value in practical application. It almost
leaves every case to be decided on its own facts. "The difficulty
with the definition is that it needs defining." ^•^

288. The Americcm cases ^^^ incline to adopt, as the test of
whether the plaintiff and another servant are fel-
lovs^ servants of the same tnaster, the doctrine of
vice principaL

288. A vice princii>al, as distinguished from a fellow serv-
ant, is one to whom the master has delegated some
absolute duty owed by the master to his servants.
For the negligence of such vice principal, at least
so long as he is engaged in the performance of such
duty, the master is responsible to other servants.

Confusion in Opinion.

There is probably no subject connected with the law of negligence
that has given rise to more variety of opinion than that of fellow

i8» Morgan v. Vale of Neath Ry. Co., 5 Best & S. 570, L. R. 1 Q. B. 149;
Swainson v. North Eastern Ry. Co., 3 Exch. Div. 341. Et vide Catawissa
R. Co. V. Armstrong, 49 Pa. St. 186; Chicago & A. R. Co. v. KeUy, 127 111.
637, 21 N. E. 203; Joliet Steel Co. v. Shields, 134 111. 209, 25 N. E. 509;
Moynihan v. Hills Co., 146 Mass. 586-594, 16 N. E. 574; Webb v. Denver
& R. G. R. Co., 7 Utah, 363, 26 Pac. 981; Dixon v. Chicago & A. R. Co..
109 Mo. 413. 19 S. W. 412. Et vide Griffiths v. Wolfram, 22 Minn. 185;
Osborne v. Morgan, 130 Mass. 102.

i»ocooley, Tbrts, 544, note 1; Thomp. Neg. 1026-1031; 3 Wood, R. R.
{ 388; Beach, Contrib. Neg. § 324.

"1 Hawkins v. New York, L. E. & W. R. Co. (N. Y. App.) 37 N. E. 406;
Monmouth Min. & Manu£*g Co. v. Erling (lU. Sup.) 36 N. E. 117. And sec

1038 MASTER AND SERVANT. [Ch. IS

servants. The authorities are hopelessly divided upon the general
subject, as well as upon the question here involved. *^t is useless
to attempt an analysis of the cases which have arisen in the courts
of the several states, since they are wholly irreconcilable in prin-
ciple, and too numerous even to justify citation.'^ ^•^ It would seem,
however, that there is a very general tendency on the part of
iVmerican cases to refuse to determine the relation by mere refer-

Bailey, Mast. & S. cc. 1^18, wherein the rules adopted in various states
are formulated.

i»2 Mr. Justice Brown, in Northern Pac. R. Co. v. Hambly, 154 U. S. 349-
355, 14 Sup. Ct. 983. The confusion on the subject appears fully in the
cases of raUroad employes. Among the recent cases in which such persons
have been held to be fellow sei-vants are Rutledge v. Missouri Pac. Ry.
Co., 123 Mo. 121, 24 S. W. 1053, aflinncd in 27 S. W. 327 (switchman and
engineer); Northern Pac. R. Co. v. Charless, 2 C. C. A. 380, 51 Fed. 5(j7.
distinguished, and McKaig v. Northern Pac. R. Co., 42 Fed. 288, approved,
in Cincinnati, N. O. & T. P. R. Co. v. Clark, 6 C. C. A. 281, 57 Fed. 12.j
(telegraph operator and fireman); Kerlin v. Chicago, P. & St. L. R. Co., 50
Fed. 185, foUowLHl in Becker v. Baltimore & O. R. Co., 57 Fed. 188 (con-
ductor and brakenian); La Pierre v. Chicago & G, T. Ry. Co., 99 Mich. 212.
58 N. W. 60 (Id.); Campbell v. Cook, 86 Tex. 630, 26 S. W. 486 (Id.); South
Florida R. Co. v. Price, 32 Fla. 46, 13 South. 638 (engineer, brakeman, and
conductor); Jenkins v. Richmond & D. R. Co., 39 S. C. 507, 18 S. E. 182
(fireman and conductor); Baltimore & O. R. Co. v. Baugh, 149 U. S. 368.
13 Sup. Ct. 914; Jarman v. Chicago & G. T. Ry. Co., 98 Mich. 135, 57 N.
W. 32 (fireman and conductor); Schaible v. Lake Shore & M. S. Ry. Co..
97 Mich. 318, 56 N. W. 565 (trackman and trainman); Ellington v. Boavor
Dam Lumber Co., 93 Ga. 53, 19 S. E. 21; Watts v. Hart, 7 Wash. 178. 34
Pnc. 423, 771 (engineer, fireman, and laborer); Atchison, T. & S. F. R. Co.
V. Martin (N. M.) 34 Pac. 536 (conductor, engineer, and laborer); Northern
Pac. R. Co. V. Hambly, 154 U. S. 349, 14 Sup. Ct 983 (conductor, engineer,
and laborer); Northern Pac. R. Co. v. Smith. 8 C. C. A. 663, 59 Fed. 99.';
(conductor, engineer, and laborer). Among the recent cases In which such
employes have been held not to be fellow servants, see McGill v. Southern
Pac. Co. (Ariz.) 33 Pac. 821 (section foreman and conductor); Atchison, T.
& S. F. R. Co. V. Seeley, 54 Kan. 21, 37 Pac. 104 (brakeman and station
agent); Hankins v. New York, L. E. & W. R. Co., 142 N. Y. 416, 37 N. E.
466 (train dispatcher and fireman); Little Rock & M. R. Co. v. Barry. 58
Ark. 198, 23 S. W. 1097 (train dispatcher and engineer); Wooden v. Western
N. Y. & P. R. Co., 5 Misc. Rep. 537, 25 N. Y. Supp. 977 (conductor and
brakeman); Illinois Cent. R. Co. v. Spence, 93 Tenn. 173, 23 S. W. 211;
Chicago. M. & St P. Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, dlstin-

_ «

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 103^

enve to decisions that men in specified relations are or are not fel-
low servants, but to rest the determination of such questions upon
the philosonhical basis of performance of duty, and to adopt the
doctrine of vice principal as a test of fellow servant.^ •**

Negatively as to Who is a Vice Principal.

Many of the cases, and especially the earlier ones, undertook to
define a fellow servant by contrasting him with some one having
supeiintendence or control; that is, a '^superior servant*' ^'^ The

guished in Baltimore & O. R. Co. v. Baugh, supra (engineer and fireman);
Ck)re V. Oliio R. Co., 38 W. Va. 456, 18 S. E. 596 (engineer and brakeman);
Louisville, E. & St. U C. R. Co. v. Hawthorn, 147 111. 226, 35 N. B. 534,
and 45 111. App. 635 (fence builder and engineer); Haney v. Railway Co.,
38 W. Va. 570, 38 S. E. 748 (conductor, signal operator, and section hand);
Union Pac. Ry. Co. v. Ericson, 41 Neb. 1, 59 N. W. 347 (section man and
fireman). And, generally, see Schlereth v. Missouri Pac. Ry. Co., 115 Mo.
87. 21 S. W. 1110; Armstrong v. Railway Co., 8 Utah, 420, 32 Pac. Gd?>;
Evans v. Louisville, N. O. & T. Ry. Co., 70 Miss. 527, 12 South. 581; New
York & N. E. R. Co. v. Hyde, 5 C. C. A. 461, 56 Fed. 188; Evansville & R.
R. Co. V. Henderson, 134 Ind. 636, 33 N. E. 1021; Peoria, D. & E. Ry. Co.
V. Rice, 144 111. 227, 33 N. E. 951; Texas & P. Ry. Co. v. Easton, 2 Tex.
Civ. App. 378, 21 S. W. 575; Charles v. Taylor, 3 C. P. Dlv. 492; Randall
V. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. 322; Miller v. Missouri
Pac. Ry. Co., 109 Mo. 350, 19 S. W. 58; Daniel's Adm'r v. Chesapeake &
O. Ry. Co., 36 W. Va. 397, 15 S. E. 162.

i»8 Greenway v. Conroy, 100 Pa. St. 185, 28 Atl. 692; Union Pac. Ry. Co.
V. Kelley, 4 Colo. App. 325, 35 Pac. 923; Card v. Eddy (Mo. Sup.) 24 S. W.
746; Flike v. Boston & A. R. Co., 53 N. Y. 549; Crispin v. Babbitt, 81 N.
Y. 516; Gunter v. Granlteville Manuf'g Co., 18 S. C. 262; Moon's Adm'r v.
Richmond & A. R. Co., 78 Va. 745; Brown v. Minneapolis & St. L. By.
Co., 31 Minn. 553, 18 N. \V. 834; HaAvkins v. RaUroad Co., 11 N. Y. Law
J. 84, quoting the Harvard Law Review to the eflfect that the doctrine of
vice principal has been accepted by the courts of about 10 states, and by
the supreme court of the United States. The position of the supreme court
of the United States is subsequently considered.

1B4 An assistant road master in control of a gang of men, and with
power to direct their work and discharge any of them, is a superior serv-
ant, for whose negligent acts the master is liable. Harrison v. Railroad
Co., 79 Mich. 409, 44 N. W. 1034, followed in Palmer v. Michigan Cent R.
Co., 93 Mich. 363, 53 N. W. 397. Et vide post, p. 1043, note 201; Newport
News & M. V. Co. v. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 958. And see note
by James M. Kerr to Garrahy v. Kansas City, St. J. & C. B. R. Co., 25 Fed.
258, 203.

1040 MASTER AND SERVANT. [Ch. 13

test is, however, generally abandoned, and it is generally accepted
that difference in rank, position, or control does not determine
whether or not given men are fellow servants.^ "*^ Therefore, a sec-
tion man and a section foreman are fellow servants.^**

108 Hofnagle v. New York Cent & H. R. R. CJo., 55 N. Y. G08; McCosker
V. Lons Island R. Co., »4 N. Y. 77; Allen, J., in V^'right v. New York Cent.
R. Co., 25 N. Y. 562-5G5; Hanna v. Granger (R. I.) 28 Atl. 659; Atchison,
T. & S. F. R. Co. V. Martin (N. M.) 34 Pac. 536. The mere fact that an
employ^ occasionally had authority to require other employes to help him
does not render him a vice principal at such times, though they were then
under his orders. Hathaway v. Illinois Cent. Ry. Co. (Iowa) 60 N. W. 651.

i»e Olson V. St. Paul, M. & M. Ry. Co., 38 Minn. 117. 35 N. W. 866. Fur-
ther, as to a foreman as a fellow servant, see Atchison, T. & S. F. R. Co.
V. Martin (N. M.) 34 Pac. 536; Noyes v. Wood (Cal.) 36 Pac. 766; I^rlch v.
Moies (R. I.) 28 Atl. 661; Fordyce v. Briney, 58 Ark. 206, 24 S. W. 250.
But cf. Cheeney v. Ocean S. S. Co., 92 Ga. 726, 19 S. E. 33; Cleveland, C,
C. & St. L. Ry. Co. V. Brown, 6 C. C. A. 142, 56 Fed. 804; Davis v. New
York, N. H. & H. R. Co., 159 Mass. 532, 34 N. B. 1070. Cf. last case with
O'Brien v. Rideout, 101 Mass. 170. 36 N. B. 792. A train dispatcher, em-
ployed by the division superintendent, though he has power to employ
and discharge brakemen and flagmen, and has general charge of the move-
ment of trains, is a fellow servant of an engineer whorls also subject to
the instructions of the division superintendent. Norfolk & W. R. Co. v.
Hoover (Md.) 29 Atl. 994. Railroad section men and laborers on repair
trains, employed by the same master for the same general purpose of
keeping the roadbed and track in order, are fellow servants; and the em-
ployer Is not liable for Injuries to one, caused by negligence of another,
tfiough such other has control over a gang of men. Thom v. Pittard, 10
C. C. A. 352, 62 Fed. 232. A superintendent may be a fellow servant.
Howard v. Hood, 155 Mass. 391, 29 N. E. 630. A truck packer and a fore-
man of a roundhouse are fellow sen'ants, though the former was subject
to the orders of the latter. Gonslor v. Minneapolis & St. L. Ry. Co., 36
Minn. 385, 31 N. W. 515; Wilson v. Meny, L. R. 1 H. L. Sc. 320; O'Brien
V. Rideout, 161 Mass, 170, 36 N. E. 792 (foreman and circular saw); Mc-
Guerty v. Hale, 161 Mass. 51, 36 N. E. 682; Dowd v. Boston & A. R. Co.,
162 Mass. Ib5, 38 N. E. 440; De Marcho v. Builders' Iron Foundry (R. I.)
28 Atl. 661 (employs injured by foreman throwing box on iron posts). But
see Chicago Anderson Pressed-Brick Co. v. Sobkowiak, 148 111. 573, 36 N.
E. 572. Where a laborer on a work train is injured by the negligence of
one who Is both conductor of the train, and also foreman of the laborers,—
having, in the latter capacity, power to hire and discharge the laborers at
his discretion,— the question whether they are fellow servants is for tho
jury. (Baker, J., dissenting. Abend v. Railroad Co., Ill 111. 202, distiii-

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1041

It is quite clear, also, that, while thus a vice principal is not de-
termined by rank, position, or control, neither is he determined by
difference in employment. It is, however, by no means a necessary
consequence that the doctrine of vice principal should exclude the
test of common employment.*"^ Such exclusion is likely to work great
hai*dship, and to mark the departure as to master and servant from

ffuisbed. 52 III. App. 556, affirmed.) Mobile & O. R. Co. v. Massey, 152
lU. 144, 38 N. E. 787. A review of tlie law as to the liability of a master
for the negligence of a fellow servant, as applied in the courts of Illi-
nois, with numerous citations, by James P. Harrold, 39 Cent. Law J. 4U7.
A brakeman and conductor may be fellow sen^ants. Campbell v. C/oolc, 8U
Tex. G30, 26 S. W. 486. And, generally, see Northern Pac. R. Co. v. Peter-
son, 2 C. C. A. 157, 51 Fed. 182-185; The Frank & WUlie, 45 Fed. 494, 495,
and cases collected; Kerlin v. Chicago, P. & St. I*. R. Co., 50 Fed. 185;
Hanna v. Granger (R. I.) 28 Atl. 659; Wilson v. Merry, L. R. 1 H. L. Sc. 32(;;
Crispin v. Babbitt. 81 N.»Y. 516; McCosker v. Long Island U. Co., 84 X. 1.
77; Brick v. Rochester, N. T. & P. R. Co., 98 N. Y. 211; Loughlin v. People,
105 N. Y. 159, 11 N. E. 371; Hussey v. Coger, 112 X. Y. (>14, 20 X. E. 556;
CuUen V. Norton, 126 N. Y. 1. 26 N. B. 905. Foremen and persons engagotl
in superintendence were held to be fellow servants among recent cases.
City of Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 525; Griffiths v. Xew
Jersey & N. Y. R. Co., 5 Misc. Rep. 320, 25 N. Y. Supp. 812; Xew Pittsburgh
Coal & Coke Co. v. Peterson. 136 Ind. 398, 35 X. E. 7; Watts v. Hart, 7
Wash. 178, 34 Pac. 423; Harley v. Louisville & N. R. Co.. 57 Fed. 144; Balti-
more & O. R. Co. V. Baugh, 149 U. S. 368, 13 Sup. Ct. 914; Kennedy v. Spring,
160 Mass. 203, 35 N. E. 779. Held not to be fellow servants: Ft. Worth
& D. C. R. Co. V. Peters (Tex. Civ. App.) 25 S. W. 1077; Cheeney v. Ocean
S. S. Co., 92 Ga. 726, 19 S. E. 33; Chicago Anderson Pressed-Brick Co. v. Sob-
kowiak, 148 lU. 573, 36 N. E. 572; Libby, McNeill & Libby v. Scherman, 146
111. 540, 34 N. E. 801; Cleveland, etc., R. Co. v. Brown, 6 C. C. A. 142, 50 Fed.
804; Davis v. New York, N. H. & H. R. Co., 159 Mass. 532, 34 X. E. 1070; Pren-
dible V. Connecticut R. Manuf g Co., 160 Mass. 131, 35 N. E. 675; Zintek v.
Stimson Mill Co. (Wash.) 37 Pac. 340. And, generally, see Allen v. Goodwin,
92Tenn. 385, 21 S. W. 760; Moody ytflamllton Manuf 'g Co., 150 Mass. 70,
34 N. B. 185; Gilmore v. Oxford Iron & Nail Co., 55 X. J. Ijiw. 39, 25 Atl.
707; Bloyd v. St Louis & S. F. Ry. Co., 58 Ark. 66, 22 S. W. 1089; Hoosier
Stone Co. v. McCain, 133 Ind. 231, 31 X. E. 956; Roseback v. Aetna Mills,
158 Mass. 379, 33 N. E. 577; Kansas City, M. & B. R. Co. v. Burton, 97 Ala.
240, 12 South. 88. As to the rule in admiralty torts, see The Egj'ptian Mon-
arch, :{6 Fed. 773; The Queen, 40 Fed. 694; The City of Alexandria, 17 Fed.
390; Grimsley v. Hankins, 46 Fed. 400; The City of Xorwalk, 55 Fed. 98-102;
The Julia Fowler, 49 Fed. 277.
i(»7 As against the abolition of the consociation test, see Evans y. Carbon

LAW OP TORTS— 66

1042 MASTKK AND SERVANT. [Oil. 13

the general rule of law.^®* The tendency, however, would seem to
be to hold that one who is not a vice principal is a fellow servant****
On this general subject the supreme court of the United States has
said: "To hold the principal liable whenever there are gradations
of rank between the person receiving and the person causing the
injury, or whenever they are employed in different departments of

HUl Coal Co., 37 Fed. 437; Nashville & C. R. Co. v. Carroll, 6 Helsk. 347;
Dixon V. Chicago & A. R. Co., 109 Mo. 413, 19 S. W. 412; Hobson v. New
Mexico & A. R. Co. (Ariz.) 11 Pac. 545; Chicago & N. W, R. Co. v. Moranda,
93 111. 302.

198 The general rule of law as to assumption of risk is based on knowl-
edge of danger on the part of some <Hie who then voluntarily assumes the
risk. Ante, p. 1014. Indeed, this is the general rule as to servants where the
Ironclad artificial formula as to fellow servant is not at>plied. Post, p. 1053.
But, If the teat of vice principal be adopted and defined so as to exclude con-
siderations as to common employment, a sei*vant t\^11 be held to assume neg-
ligence of another of whose existence he is not aware. It is hard to see
how any actual or natural assumption of risk can be found In such a case
as Neal v. Northern Pac. R. Co. (Minn.) 59 N. W. 312. This has been rec-
ognized by the supreme court of the United States quite distinctly In North-
em Pac. R. Co. V. Hambly, 154 U. S. 349, 14 Sup. Ct 983, post, p. 1049. and
indirectly in Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914,
in these words: **Thus, between the law department of a railway corporation
and the operating department there is a natural and distinct separation,—
one which makes the two departments like two independent kinds of busi-
ness, in which the one employer and master is engaged. So sometimes
there is in the affairs of such corporations what may be calleil a manufac-
turing or repair department, and another strictly operating department;
these two departments are in their relations to each otlier as distinct and
separate as though the work of each was carried on by a separate corpora-
tion." Query: A party composed, inter alia, of a clerk in the law depart-
ment of a railway and of Invited guest left Portland, Or., for the East.
After they started, a certain switchman, 1,000 miles to the East, is employed
by the master of the clerk. Through the negligence of the switchman the
entire party suffered damage. Can that clerk be held to have consented to
the risk of the negligence of such switchman? Did the guest assume the

risk?

100 Ever since the leading and pioneer case of Farwell v. Boston & C.
Ry. Co., 4 Mete. (^lass.) 49, the overwhelming majority of authorities have
repudiated the "same department" or "consociation" theory. Neal v. North-
ern Pac. R. Co. (Minn.) 59 N. W. 312. Men employed by a railroad company,
under the direction of a foreman, in blasting and quarrying stone along the
road, and the lineman employed by the same company, under the direction
of the superintendent of telegraphy, In repairing the telegraph line, which

Ch. J 3] ASfiUMrnox ob risk by servant. 1043

the same general service, would result in frittering away the whole
doctrine of fellow service.'' '^^

Performance of DiUy the Test.

Positively one employ^ becomes vice principal of another only
when he is intrusted with the performance of some absolute and
personal duty of the master himself. These duties are not only
absolute, but they are also inalienable and nonassignable. They
may be devolved on others by the master, but not without recourse
to him. For negligence in the discharge of these duties he is liable.
It is immaterial whether such negligence is his own or that of his
servant. In this sense the servant is the alter ego of the master
or vice principal.*®^ The master's absolute and personal duties

was broken by the blastihgr. and who was assisted, when necessary, by the
qnarryraen, are feUow servants. Id. Generally, as to the adoption of the
test of vice principal to the exclusion of the doctrine of common employ-
ment, see Brown v. Winona & St. P. R. Co., 27 Minn. 162, 6 N. W. 484; Fos-
ter v. Minnesota Cent. Ry. Co., 14 Minn. 3G0 (Gil. 277); CoUins v. St. Paul
A S. C. R. Co.. 30 Minn. 31, 14 N. W. €0; Brown v. Minneapolis & St. L.
R. Co., 31 Minn. 553, 18 N. W. 834; Chamberlain v. Milwaukee & M. R. R.
Co., 7 Wis. 425; Moseley v. Chamberlain, 18 Wis. 700; Cooper v. Milwaukee
& P. D. Ry. Co., 23 Wis. 6C8; Flowland v. Milwaukee, L. S. & W. Ry. Co.,
54 Wis. 220, 11 N. W. 529; Hoth v. Peters, 55 Wis. 405, 13 N. W. 219; Dwyer
V. American Exp. Co., 55 Wis. 453. 13 N. W. 471; Blazinskl v. Perkins, 77
Wis. 9, 45 N. W. 947; Johnson v. Ashland Water Co., 77 Wis. 51, 45 N. W.
807; Peschel v. Chicago, M. & St P. Ry. Co., 62 Wis. 3:J8, 21 X. W. 2(S);
Chapman v. Erie Ry. Co., 55 N. Y. 579; Dewey v. Detroit, G. H. & M. Ry.
Co., 97 Mich. 329, 56 N. W. 750; Wilson v. Hudson River Water Power &
Paper Co., 71 Hun, 292, 24 N. Y. Supp. 1072; Jenkins v. Richmond & D. R.
Co., 39 S. C. 507, 18 S. E. 182; Baltimore & O. Ry. Co. v. Baugh, 149 U. S.
368, 13 Sup. Ct. 914; Potter v. New York Cent. & H. R. R. Co., 136 N. Y.
77, 32 N. E. 603; Stutz v. Armour. 84 Wis. 623, 54 N. W. 1000; Schaible v.
Lake Shore & M. S. Ry. Co., 97 Mich. 318, 56 N. W. 565.

200 Brown, J., in Northern Pac. R. Co. v. Ilambly, 154 U. S. 349 ;J(»0, 14
Sup. Ct. 983.

201 Dillon, J., in 24 Am. Law Rev. 184. Et vide Johnson v. Boston Tow-
lK>at Co., 135 Mass. 209; SulUvan v. Hannibal & St. J. Ry. Co., 97 Mo. 66,
17 S. W. 748; Greenway v. Conroy, 100 Pa. St. 185, 28 Atl. 692; Cincinnati.
N. O. & T. P. R. Co. V. Clark. 6 C. C. A. 281, 57 Fed. 125; Chicago Anderson
Pressed-Brick Co. v. Sobkowlak, 148 III. 573, 36 N. E. 572; New Pittsburgh
Coal & Coke Co. v. Peterson. 136 Ind. 398, 35 N. E. 7; McEllIgott v. Ran-
dolph, 61 Conn. 157, 22 Atl. 1094; Gabrielson v. Wnydell, 135 N. Y. 1, 31 N. E.
969; Dube v. City of I^wiston, 83 Me. 211, 22 AU. 112; Hussoy y. Coger, 112
N. Y. 614. 20 N. E. 556; Chicago, St. P., M. & O. Ry. Co. v. Lundstrom, 16

1044 MASTER AND SEUVANT. [Ch. 13

have been already considered. Breach of any one of them by a
servant is the master's wrong.

Tims, where the determination of the sufficiency of appliances for
holding a railroad train in descending a grade was left to the con-
ductor, the decision of the conductor was the decision of the rail-
road company, and the company was liable for the death of a brake-
man on such train, caused by the insufficiency of the appliances

Servants who are charged with the duty of supplying safe ma-
chinery are not to be regarded as fellow servants with those who
are engaged in operating it.^®'

The negligence of the su|)erintendent of a mine in failing to take
proper precaution to protect the workmen from the fall of a mass
of rock from an overhanging cliff is the negligence of the master,
and not that of a fellow servant.^"* So, if a conductor is charged

Xeb. 2r»4, 20 N. W. 198; Sioux City & P. R. Co. v. Smith, 22 Neb. 775, 36 N.
\V. 285. The master of a steamboat, while iu command and directing her
movements, is a vice principal of the owner, and not a fellow servant of the
engineer. (55 Fed. l>8, revei-sed.) The Car Float No. 10, 9 C. C. A. 521,
01 Fed. 364; McCullough v. New York, N. H. & H. R. Co., Id.; New York &
N. Steamboat Co. v. The Transfer No. 4, Id. The train dispatcher of a di-
vision, who, in directing the movements of two trains which are being run
entirely on spocial orders, makes a mistake, whereby the trains collide. Is a
vice principal as to the fireman on the engine of one of them, who is in-
jured thereby. Hanklns v. New York, L. E. & W. K. Co., 142 N. Y. 416, 37
N. E. 466.

20 2 Wooden v. Western N. Y. & P. R, Co. (Super. Ct Buflf.) 16 N. Y. Sup|).
840; Pantzar v. Tilly Foster I. M. Co., 99 N. Y. 'MiS, 2 N. E. 24; Chase, Lead.
Cas. 242; Caddeu v. American Steel-Barge Co., 88 Wis. 409, 60 N. W. 800.

20S Ford V. Fitchburg R. R., 110 Mass. 240; Houston v. Brush (Vt.) 29 Ati.
380; Nixon v. Selby Smelting Lead Co., 102 Cal. 458, 36 Pac. SOSi; Hughlett
V. Ozark Lumber Co., 53 Mo. App. 87. A conductor whose duty is to handle
a switch is a vice principal. Mase v. Northern I*ac. R. Co., 57 Fed. 283.

204 Pantzar v. Tilly Foster Iron Miu. Co., 09 N. Y. 368, 2 N. E. i^4; Northern
Pac. R. Co. V. Herbert, 116 U. S. 612, 6 Sup. Ct. 591); Hough v. Railway Co.,
100 U, S. 213; Benzing v. Stelnway, 101 N. Y. 547, 5 N. E. 449; Stringham v.
Hilton, 111 N. Y. 188, 18 N. E. 870; Tuttle v. Detroit, G. H. & M. Ry. Co., 122
IJ. S. ISO, 7 Sup. Ct. 1166; Libby, McNeill & Libby v. Scherman. 146 111. 540,
34 N. E. 801; Hayden v. Smith viUe Manufg Co., 29 Conn. 548; Cole Bros. v.
Wood (Ind. App.) 36 N. E. 1074; Yeaton v. Boston & L. R. Corp., 135 Moss
418; Washington & G. R. Co. v. McDade. 135 U. S. 554, 10 Sup. CL 1044;
Rogers v. Ludlow Manufg Co.. 144 Mass. 198, 11 N. E. 77; Buzzell v. Lnconia

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 1U45

with the care and management of switches, he is not a fellow serv-
ant of an engineer injured by a switch negligently left open.***

The negligence of inspectors is not the negligence of a fellow serv-
ant, but of a vice principal, and entitles a servant injured thereby
to recover against the master."®*

The duty to warn of special danger,*®^ or to warn and instruct
an ignorant employ^,**® or to communicate orders,*"* falls on a vice
principal, and not on a fellow servant

Mannrg Co., 48 Me. 113. But a "fiUer** in a coal mine, whose duty it is to post
and prop the roof of the mine, is a fellow servant of the miner. Consolidated
i:oal & Min. Co. v. Clay's Adm*r (Ohio Sup.) 38 N. B. 010. And a mine owner
ifl not responsible for the death of miners caused by the ne}9ili;;ence of the en-
fclneer of the hoist engine, in mishoisting the cage in which they are ascending::
the shaft Mulhern v. Lehigh Val. Coal Co., 161 Pa. St 270, 28 Atl. 1087;
O'Boyle v. Lehigh Val. Coal Co., ICl Pa. St. 270, 28 Atl. 1088. So, if a fore-
man were negligent in ordering his men to go on shoveling sand under a
bank, after warning that it was dangerous, such negligence was that of a
fellow servant, not of a vice principal. Larich v. Moles (R. I.) 28 Atl. 661.

«08 Mase V. Northern Pac. R. Co., 57 Fed. 283. And see Louisville & N.
R. Co. V. Ward, 10 C. C. A. 166, 61 Fed. 927.

206 Chicago & E. I. R. Co. v. Knelrim, 48 IH. App. 243, 39 N. B. :i24. The
negligence of defendant's foreman in failing to notice the defect in ma-
chinery when- it came from the manufacturer, or in failing afterwards to dis
cover the defect, is the negligence of a servant in the discharge of a duty
which the master owes his otlier servants, and not tlie negligence of a fel-
low servant. Houston v. Brush, 66 Vt. 331, 29 Atl. 380. Duty to insi)ect ;i
coupling link (Little Rock & M. R. Co. v. Moseley, 6 C. (\ A. 22.5, 56 Fed.
1009) or a defective wheel of ah engine falls on the vice principal (Coontz v.
Missouri Pac. R. Co., 121 Mo. 6r»2, 26 S. W. 661). And, generaUy, see Ohio
& M. R. Co. V. Pearcy, 128 Ind. 197, 27 N. E. 479; Wooden v. Western X.
Y. & P. R. Co. (Super. Buff.) 16 N. Y. Supp. 840. Generally, a car inspector
is not a fellow servant with the car operators. Macy v. St. Paul & D. K.
Co., 35 Minn. 200, 28 N. W. 249. Similarly, the man whose duty it is to
inspect telegi-aph poles is not a fellow sei-vant of a lineman. Kelly v. Erie
Telegraph & Telephone Co., 34 Minn. 321. 23 N. W. 706. But see Neutz v.
Jackson HiU Coal & Coke Co. (Ind. Sup.) 38 N. E. 324; Bowers v. Connecti-
cut River R. Co., 162 Mass. 312, 38 N. E. 5()8; Headefln v. Cooper (City Ct.
Brook.) 26 N. Y. Supp. 763. Contra, Jannan v. Chicago & G. T. Ry. Co.,
98 Mich. 135, 57 N. W. 32.

207 Ft Smith OU C:o. v. Slover, 58 Ark. 168. 24 S. W. 106.

208 Lebbering v. Struthers, Wells & Co.. 157 Pa. St 312, 27 Atl. 720. Cf.
Bellows V. Pennsylvania & N. Y. Canal & R. Co., 157 Pa. St. 51, 27 Atl. 085.

200 Card v. Eddy (Mo. Sup.) 24 S. W. 746. Ct. De Marcho v. Builders* Iron
Foundry (R. I.) 28 Atl. 661, and'McGucrty v. Hale, 161 Mass. 51. 36 N. E. GSi\

1046 MASTER AND SERVANT. [Ch. 13

Where, however, the general work includes the construction or prep-
aration of the appliances (as where, in erecting a building, the em-
ployes construct a scaifold), they are fellow servants in respect to
the negligence of one of them in constructing such appliances, as
well as in respect to the negligence of such a one in doing other
work. Here the master is said not to have undertaken the duty of
furnishing or adopting the appliances by which the work is to be
performed. This duty is aseumed by the workmen themselves, and
the master is exempt from responsibility if suitable materials are
furnished and suitable workmen are employed by him.*^® But the
cases are not in entire harmony.*^^ If, however, the master was
negligent in furnishing suitable material, and had retained the di-
rection and charge of the staging himself, he would have been lia-
ble.* ^^ An employ^ may sometimes act as a vice principal, and
sometimes as a colaborer,^^* and, on the other hand, a servant per-
nio Kelley v. Norcross, 121 Mass. 508; O'Keefe v. BrowneU, 156 Mass. 131,
30 N. E. 479; Prendible v. Connecticut River Manufg Co., 100 Mass. 131, 35
N. B. 675; Marsh v. Herman, 47 MiniL 537, 50 N. W. 611; Colton v. Richards,
123 Mass. 484; Klllea v. Faxon, 125 Mass. 485; Noyes v. Wood, 102 Cal. 389.
36 Pac. 766; Peschel v. Chicago, M. & St. P. Ry. Co., 62 Wis. 338, 21 N. W.
269; Filbert v. Delaware & II. Canal Co., 121 N. Y. 207-212, 23 N. E. 1108;
Gallagher v. Piper, 16 C. B. (N. S.) 669; Fraser v. Red River Lumber Co., 45
Minn. 235, 47 N. W 785; Nixon v. Selby Smelting & Lead Co., 102 Cal. 458,
36 Pac. 803. Cf. Ryan v. McCully, 123 Mo. 636, 27 S. W^ 533; Kalleck v.
Deerlng. 161 Ma8.s. 4(59, 37 N. E. 450; Loughlin v. State, 105 N. Y. 159, 11 N.
E. 371, followed in Connolly v. Maiirer (Com. PI.) 26 N. Y. Supp. 18.

211 Sims V. American Steel Barge Co., 56 Minn. 68, 57 N. W. 322; Cadden v.
American Steel Barge Co., 88 Wis. 409, 60 N. W. 800; McNamara v. MacDon-
ough, 102 Cal. 575. 36 Pac. 941.
»i2 Arkerson v. Dennison, 117 Mass. 407.

213 LindvaU v. Woods, 41 Minn. 212, 42 N. W. 1020 (but see same case, 44
Fed. 855, 47 Fed. 195, 1 C. C. A. 37, and 48 Fed. 62, approved In Northern
Pac. R. Co. V. Peterson, 2 C. C. A. 157, 51 Fed. 182-187); Crispin v. Babbitt
81 N. Y. 516; Loughlin v. State, 105 N. Y. 159, 11 N. E. 371; Quinn v. New
.Tei-sey Lighterage Co., 23 Fed. 363; Doughty v. Penobscot L. D. Co., 76 Me.
143; Benson v. Goodwin, 147 Mass. 237, 17 N. E. 517. But see Berea Stone
Co. V. Kraft, 31 Ohio St. 287; Gormley v. Vulcan Iron Works, 61 Mp. 492. A
foreman in chargie of a gang engaged in loading rails, and actually assisting
therein, is, as to such work, a fellow servant of the other members of the
gang. Louisville, N. A. & C. Ry. Co. v. Isom, 10 Ind. App. 691, 38 N. E. 423. A
foreman actuaUy assisting in labor is a fellow sei^ant of the rest of the gang.
Texas & P. Ry. Co. v. Rogers, 6 C. C. A. 403, 57 Fed. 378. But see St Louis,

^'i». 13] ASSUMPTION OF RISK BY SERVANT. 1047

forming the duties of a vice principal may impose on the master and
upon himself the duties and liabilities of the vice principal."*

Whether, in a given case, a given servant is a fellow servant or
a plaintiff or a vice principal, is a question of law, and not one of
fact."* In determining the responsibility of the master under such
circumstances, the United States courts are governed by their own
decisions on the question as a matter of general law, and, in the
absence of statutory regulations by the state in which the cause
of action arises, they are not required to follow the decisions of the
state eourts.'^^

The Doctriiie of the Supreme Court of the United States.

In the celebrated case of Chicago, M. & St. P. Ry. Co. v. Ross,"^
a conductor, with supreme power and sole direction over his train,
caused a collision by gross carelessness. Under the circumstances
he was held not to be a fellow servant of the injured engineer.
This case was commonly regai*ded as inconsistent with the general
course of authority, holding that neither authority nor control of
the servant (i. e, a superior servant), nor his grade in the employment,
nor department of services were tests of who are and who are not
fellow servants. The court, however, did not hold it to be "uni-
versally true that when one servant has control over another they
cease to be fellow servants within the rule of the master's exemp-
tion from liability, but did hold that an instruction couched in such
general language was not erroneous when applied to the case of a

A. & T. Ry. Co. V. Toney, 58 Ark. 217. 24 S. W. 244. But cf. Shiimway v.
Walworth & N. Manufg Co., 98 Mich. 411, 57 N. W. 251.

214 Lasky v. Canadian Pac. Ry. Co., 83 Me. 4G1, 22 Ati. 3(57.

21 B Johnson v. Boston Towboat Co., 135 Mass. 201); McGinty v. Athol
Reservoir Co., 155 Mass. 183, 29 N. B. 510.

216 Gardner v. Michigan Cent. R. Co.. 150 U. S. 349-358, 14 Sup. Ct. 140;
Baltimore & O. R. Co. v. Baugh, 149 U. S. 3(18, 13 Sup. Ct 914; I^ke Shore
& M. S. Ry. Co. V. Prentice, 147 U. S. 101, 13 Sup. Ct. 261; Myrlck v. Michigan
Cent. R. Co., 107 U. S. 102, 1 Sup. Ct. 425; Hough v. Railway Co., 100 U. S.
213; Railroad Co. v. Lockwood, 17 Wall. 357; Northern Pac. R. Co. v. Peter-
son, 2 C. C. A. 157, 51 Fed. 182.

21 T 112 U. S. 377, 5 Sup. Ct. 184. And see Northern Pac. R. Co. v. Cava-
naugh, 2 C. C. A. 358, 51 Fed. 517, Morgan v. Carbon HUl Coal Co., 6 Wash.
577, 34 Pac. 152, 772; Cowles v. Richmond R. Co., 84 N. C. 309: Chicago &
N. W. Ry. Co. V. Bayfield, 37 Mich. 205; Whalen v. Centenary Church, 62 Mo.
326.

1048 MASTER AND SERVANT. [Ch. 13

conductor having exclusive control of a train in relation to other
employes of the company acting under him on the same train. The
conductor was, in the language of the opinion, clothed with the con-
trol and management of a distinct department He was 'a super-
intending officer.' • • • He had 'the superintendence of a de-
partment'" *^* A later opinion of the supreme court held that an
engineer and fireman are fellow servajits. In this the courts say
that the rightful test for determining who are fellow servants is:
"There must be some 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 was absolved from all responsibility, and
that the party who caused the injury should be himself alone re-
sponsible. ♦ ♦ ♦ The question turns rather on the character of
the act than on the relations of the employes to each other. If the
act is one done in the discharge of some positive duty of the mas-
ter to the servant, then negligence in the act is the negligence of the
master; but if it be not one in the dischai'ge of such positive duty,
then there should be some personal wrong on the part of the em-
ployer before he is held liable therefor." *^*

This later decision essentially modifies and probably overrule«
the previous decision of the same court (Chicago, M. & St. P. Ry. Co.
V. Ross) — for this court never in terms overrules its previous deci-
sions— in holding that it is not universally true that, when one serv-

218 Justice Brewer, in Baltimore & O. R. Co. v. Baugli, 149 U. S. 3GS-<JSL>.
13 Sup. Ct. 914.

210 Baltimore & O. R. Co. v. fiaugh, 149 U. S. 3G8, 13 Sup. Ct. 914, 920, 921.
See McGrath v. Rogers, 57 Fed. 378; McGrath v. Texas & P. Ry. Co., 9 C. C.
A. 133, GO Fed. 555; Louisville & N. R. Co. v. Ward, 10 C. C. A. 160, 61 Fed.
927; Ilarley v. Louisville & N. R. Co., 57 Fed. 144; What Cheer Coal Co. v,
Johnson, 6 C. C. A. 148, 56 Fed. 810, distinguished, Finley v. Richmond &
D. R. Co., 59 Fed. 419; St. Louis, I. M. & S. Ry. Co. v. Needham, 11 C. C. A.
56, 63 Fed. 107; Canadian Pac. R. Co. v. Johnston, 9 C. C. A. 587, 61 Fed. 738;
Martin v. Chicago & A. R. Co., 65 Fed. 384. A railroad employ^, who is one
of a gang of men employed to remove a wreck, cannot recover from the com-
pany for injuries caused by the negligence of the wreck master, who has
charge of the wrecking car. Baltimore & O. R. Co. v. Baugh, 149 U. S. 368,
13 Sup. Ct 914, followed In McGratli v. Texas & P. R. Co., 9 C. 0. A. 133, 60
Fed. 555.

Ch. 13] A:5SUMPTI0N OF RISK BY SERVANT. 1049

ant has control over another, they cease to be fellow servants."-*
And in Gardner v. Michigan Cent. R. Go.^^^ it was distinctly recog-
nized that the rule exempting the master from liability for injuries
caused to a servant by a fellow servant is subject to the exception
that the master is bound to use due care in furnishing safe instru-
mentalities for performing the work, and is liable for damages occa-
sioned by a neglect or omission to fulfill this obligation, whether it
arises from his own want of care, or that of his agent to whom he
intrusts the duty. However, in Northern Pac. R. Co. v. Hambly,^**
Brown, J., selected as the most satisfactory test of liability this:
If the departments of the two servants are so far separated from
each other that the possibility of coming in contact, and hence of
incurring danger from the negligent performance of the duties of
such other department, could not be said to be within the contem-
plation of the person injured, the doctrine of fellow servant should
not apply. It would thus seem that the supreme court, having
originally accepted the test of superior servant, has finally adopted
the test of a vice principal,'^* without excluding common employ-
ment as a supplementary test.

«2o U2 U. S. 377, 5 Sup. Ct. 1S4; 29 Am. Law Rev. 129.

221 150 U. S. 349, 360, 14 Sup. Ct. 140. In this case Mr. .Justice FuUer says:
"We regarded this doctrine as so well settled that in Texas & P. Ry. Co. v.
Cox, 145 U. S. 593-007, 12 Sup. Ct. 905, we contented ourselves, without dis-
cussion, with a reference to some of the cases in this court upon the subject."

222 154 U. S. 349-355, 14 Sup. Ct 983. This case, specifically, held that a
common laborer employed by the company owning and operating a railroad,
and working, under direction of a section foreman, on a culvert thereon, is a
feUow servant with the engineer and conductor of a passenger train on the
road, in such sense as exempts the company from liability for an injury to
him through negligence of such conductor and engineer in operating the tiuin.
Cf. Union Pac. Ry. Co. v. Erickson, 41 Neb. 1, 59 N. W. 347; Neal v. North-
em Pao. R. Co. (Minn.) 59 N. W. 312.

223 See Brewer, C. J., in Atchison, T. & S. P. R. Co. v. Reesman, 9 C. C. A.
20, 00 Fed. 370.

1050 MASTER AND SKKVANT. [Ch. 13

290. The plaintiff servant does not assume the risk of the
negligence of a fellow servant where the master
has been negligent in providing an improper fellow
servant, unless the plaintiff servant can be held to
have assumed such risk upon the principles gov-
erning the assumption of ordinary risks, exclusive
of the risk of negligence of a feUow servant.

The servant has a right to rely upon the performance of the abso-
lute duties of the master. One of these duties is to furnish proper
and suflBciently numerous fellow servants. If, however, the master
fails in the performance of these duties, and, notwithstanding such
failure, a servant continues to work, for example, with a danger-
ously incompetent fellow servant,'^** or an insufficient number of
them,^*** he assumes the risk of their negligence, subject to excep-
tions governing the assumption of ordinary risk. But, if the serv-
ant be placed at work with which he is unfamiliar and different from
and more hazardous than the service for which he is employed, he
does not assume the risk of the negligence of a fellow servant.***

2 24 Richmond & D. R. Co. v. MitcheU, 92 Ga. 77, 18 S. E. 290; Southern
Kansas Ry. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; Eddy v. Rogers (Tex. Civ.
App.) 27 S. W. 295; St. Louis, A. & T. Ry. Co. v. Lemon, 83 Tex. 143, 18 S.
W. 331; Atchison, T. & S. F. R. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 9G5.

223 Warmington v. Atchison, T. & S. F. Ry. Co., 40 Mo. App. 159; Latremoiiille
V. Bennington & R. Ry. Co., 63 Vt 33G, 22 Atl. 050; Hatt v. Nay, 144 Mass.
180, 10 N. E. 807; Richmond & D. R. Co. v. Worley, 92 Ga. 84, 18 S. E. 301.
Where the servant injured knew of the incompetency of his fellow sei-vant
by whose negligence he was injured, and continued to work without com-
plaint, he was guilty of contributory negligence. Consolidated Coal & Mln.
Co. V. Clay's Adm'r (Ohio Sup.) 38 N. E. 010. So where cars are defective
and train force deficient In number. Long v. Coronado R. Co., 96 Cal. 209,
31 Pac. 170. But see Williams v. Missouri Pac. Ry. Co., 109 Mo. 475, 18 S.
W. 1098. A master is liable to his servant for injuries resulting from the
unsafe condition of his working place, although that condition is brought
about by the negligence of fellow servants to the injured person, acting un-
der the master's doing. Northwestern Fuel Co. v. Danielson, 6 C. C. A. 636,
57 Fed. 915.

226 Here plaintiff (common laborer about depot grounds) was directed by
his superintendent to couple cars, although the superintendent knew that he
was unskilled In this work. He was Injured by the carelessness of an en-
gineer. It was held— First, that the direction by and knowledge of the super-

Ch. 13] ASSUMPTION OF RISK BY SERVANT. 105 J

Nor does ho if the master promise to subsequently provide a safe
fellow servant."^ And it has been held that a servant's assump-
tion of risk in working with an inexperienced servant waives the
negligence of the company in furnishing such a servant, but that
the waiver does not extend to any negligence of which the fellow
servant himself may be guilty. "If he fails in any respect to come
up to the measure of diligence which under the circumstances he
ought to exercise, consent to serve with him would not cut off the
right to r^over for any injury occasioned by that negligence." ^^'

291. The servant assumes the risk of the negligence of his
fellow servants, and not that of his master. If the
injury of which he complains is caused by the con-
current negligence of both the master and a fellow
servant, he is entitled to recovery.

The rule as to the exemption from liability of the master for in-
jury to a servant caused by the negligence of a fellow servant is
frequently said to apply only where the master has been negligent

intendent was that of his master; second, that where a person in the em-
ployment of another In the performance of a specitic line of duty only ordi-
narily hazardous is commanded by a fellow servant, whom he is bound to
obey, to do an act in the same general sen-ice, but different from the sphere
of employment in which he had engaged to serve, and exti*a hazardous in
its character, in respect to which the stTvant making the requirement knew
that he was unskilled and inexperienced, and in so doing injury results from
the negligence of a fellow servant employed in the particular line in which
the act is being done, the employer is liable. Lalor v. Chicago, B. & Q. li,
Co., 52 lU. 401. Bt vide Campbell & Zell Co. v. Roediger, 78 Md. GOl, 28 Atl.

yoi.

2 27 Thus, where a blacksmith's helper is dangerously incompetent, and the
master promises a safer one, the blacksmith is not guilty of contributory
negligence in continuing to work with his helper. Wust v. Erie City Iron
Works, 149 Pa. St. 20Ii, 24 Ati. 291; Laning v. New York Cent. H. Co., 49
N. Y. 521. Et vide doctrine of the case as commented on in Odell v. New
York Cent. & H. R. R. Co., 120 N. Y. 323, 24 N. E. 478; Schulz v. Clilcago,
M. & St. P. Ry. Co. (Minn.) 59 N. W. 192; McGovern v. CenU'al Vt R. Co.,
123 N. Y. 280, 25 N. B. 373; Whittaker v. President, etc., of Dehiware & H.
Canal Co., 126 N. Y. 544, 27 N. E. 1042.

23 8 Applied to injuries done a brakeman by an incompetent fireman oper-
ating an engine to phiintiff's knowledge, Richmond & D. R. Co. v. Morley,

1052 MASTER AND SERVANT. [Ch. IS

in the selection of suck cai*eless or othorwise improper fellow serv-
ants. This, however, is too narrow a statement of the rule. 'Hie
true principle woald seem to be that this is only one of a class of
cases where the wrong both of the master and of a fellow servant
combine to do injury, and that, whenever the master has been guilty
of a breach of duty to a servant, he cannot defend himself by say-
ing that the negligence of a fellow servant also contributed to the
injury.^^^ Thus, an employer is liable for an injury to an employ^
caused by a defective machine, even though the negligence of a
coemploy^ may have contributed to the result.*^® If, however, no

92 Ga. 84, 18 S. E. 3G1; Francis v. Kansas City, St. J. & C. B. R. Co. (Mo.
Sup.) 28 S. W. 842. Cf. Acme Coal Min. Co. v. Mclver (Colo. App.) 38
Pac. 596.

22»> Craver v. Christian, 36 Minn. 413. 31 N. W. 457; Grand Trunk Ry. Co.
V. Cummlngs, 106 U. S. 700, 1 Sup. Ct 493; Stringham v. Stewart, 100 N. £.
51(5, 3 N. E. 575; Elmer v. Locke, 135 Mass. 575; Pullman Palace Car Co. v.
Laack, 143 lU. 242, 32 N. E. 285; Browning v. Wabash Western Ry. Co., 124
Mo. 55, 27 S. W. 644.

2 3 'J Young V. New Jersey & N. Y. Ry. Co., 46 Fed. 160, affirmed 1 C. C. A.
428, 49 Fed. 723; Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700, 1 Sup.
Ct 493; Rogers v. Ley den, .127 Ind. 50-53, 26 N. E. 210, coUecting many
cases; Richmond & D. R. Co. v. George, 88 Va. 223, 13 S. E. 429; North-
western Fuel Co. V. Danielson, 6 C. C. A. 636, 57 Fed. 915-919; Browning v.
Wabash Western Ry. Co., 124 Mo. 55, 27 S. W. 644; Steinke v. Diamond Match
Co., 87 Wis. 477, 58 N. W. 842; Atchison, T. & S. F. R. Co. v. Wilson, 1 C. C.
A. 25, 48 Fed. 57. This is consistent with the generally accepted view of con-
current negligence. Post, p. 1053; Franklin v. Winona & St P. R. Co., 37
Minn. 409, 34 N. W. 898; Ransier v. Minneapolis & St L. Ry. Co. (1881> 32
Minn. 331, 20 N. W. 332; Gardner v. Michigan Cent. R. Co., 150 U. S. 34T>,
14 Sup. Ct. 140; Boden v. Demwolf, 56 Fed. 816; Northwestern Fuel Co.
v. Danielson, 6 C. C. A. 036, 57 Fed. 915; Louisville, N. A. & C. Ry. Co.
V. Berkey, 136 Ind. 181, 35 N. E. 3; Delude v. St Paul City Ry. Co., 55
Minn. 63, 56 N. W. 461; MoiTisey v. Hughes, 65 Vt 553, 27 Atl. 205;
Browning v. Wabash Western Ry. Co. (Mo. Sup.) 24 S. W. 731; Union Pac.
R. Co. V. Callaglian, 6 C. C. A. 205, 56 Fed. 988; Clyde v. Richmond & D.
R. Co., 59 Fed. 39i; Finley v. Richmond & D. R. Co., 59 Fed. 419. If the
conductor of a crew allow a fireman to act as engineer, whereby plaintiff
was damaged, the company cannot escape liability on the gi'ound that the
brakeman and engineer were fellow servants. Norfolk & W. R. Co. v.
Thomas' Adm*r (Va.) 17 S. E. 884, and authorities cited page 885; Finley v.
Richmond & D. R. Co., 59 Fed. 419. And see note 59 Am. & Eng. R. Cas. 302.

Ch. 13] ASSUMPTION OF KISK BY SERVANT. 10O'»

neglig^ence can be really traced to the master, as where a fellow
servant selected an improper instrument when he could have had a
proper one, the master is not liable.^^^ But the concurrent negli-
gence which may entitle a servant to recover notwithstanding the
negligence of a fellow servant need not be the negligence of the
master in pei-son; it is sufficient if it be the negligence of a vice
principal or superior servant who is not a fellow servant.***

282. The doctrine of fellow servants has been severely
criticised^ and has been generally altered by stat-
ute.

The reaction of the rule against the master and servant appears
less distinctly in the decisions of such states as Ohio, Kentucky,

231 Since the brakeman and the men who make up trains are fellow-serv-
ants, a raUroad company is not liable for an injury to the former occasioned
by the use of too short a pin in coupling cars, when, by the undisputed evi-
deucre, a pin of the proper length could have been easily obtained in the yani
or from the caboose of the train. Thyng v. Fitxihburg R. R., 156 Mass. la,
30 N. E. 169; Hefferen v. Northern Pac. R. Co., 45 Minn. 471, 48 x\. W. 1,
526, foUowed in Rawley v. CoUiau, 90 Mich. 31, 51 N. W. 350. But the cases
would not seem to be in harmony as to the general proposition. Thus, it has
been held that, conceding that the accident was the result of the joint negli-
gence of decedent's fellow servants and the failure of defendant to furnish
a proper caboose, plaintiff could not recover (Freeman, J., dlsseuting). Lutz
V. Atlantic & P. R. Co. (N. M.) 30 Pac. 912; Hefferen v. Nortliem Pac. R.
Co., 45 Minn. 471, 48 N. W. 1, 526, followed In Rawley v. ColUau, 90 Mich. 31,
51 N. W. 350.

282 Norfolk & W. Ry. v. Phelps (Va.) 19 S. E. 652; Northwestern Fuel Co. v.
Danielson, 6 C. C. A. 636, 57 Fed. 915; Cincinnati, N. O. & T. P. R. Co. v.
Chirk, 6 C. C. A. 281, 57 Fed. 125.

283 A fair type of such criticism is the celebrated one by Mr. David Gib-
bons. Note to Gale, Easem. 429, 430. "A veiy eminent judge has obsened
that Priestley v. Fowler, 3 Mees & W. 1, introduced a new chapter into the law.
Clarke v. Holmes (1861) 7 Hurl. & N. 947. Tlie actions for this cause fol-
lowing Priestley v. Fowler are very numerous, and all brought under cir-
cumstances of great discouragement. They have not arisen out of the decision
in that case, but in spite of it There have been cases by the high-pressure
speed, with which we run the race after wealth and pleasure. The weaker,
the younger, the less skillful workmen fall by the way, and are crushed or
torn by the powerful and complicated machinery employed. 'Butchered to

1054 MASTER AND 8KRVANT. [Ch. IS

and Tennessee than in its repeal or modification by English *'* and
American statutes.^"* In general, these statutes exempt employ6»
of raili*oad companies from the operation of the rule of fellow serv-
ants. The supreme court of the United States has sustained a

make a Roman holidiiy/ or, what is much the same thing, to make a good
dividend for railway shareholders, and enable them to join Cook's i)er-
sonally conducted tours to the Nile and the Holy Land."

How much unfairer and more illiberal the present common-law rule as to
the liability of the master to the servant is than the German law will ai>-
pear from a consideration of the return of the German standard of liability to
something corresponding to the absolute liability of the early Saxon. Of the
law of June 7, 1871 (Haftpflichtgesetz), concerning the liability of railroads,
mines, etc., for employes killed or injured in the operation of railroads,
mines, etc., section 1 reads as follows, viz.; "If a man is killed or bod-
ily injured in the operation of a railroad, the operating management is
liable for the damage, unless it proves that the accident was caused by the
acts of God (vis major— force majeure), or by the own fault of the killed or
injured employ 6." Section 2 is as follows: "Whoever operates a mine, a
quarry, a pit, or a factory, is liable for any carelessness or negligence at-
tributable to himself, his manager, representative, agent, or any person em-
ployed to superintend the running of the establishment or the bands employed
therein, by which the death or bodily injury of a person is caused." By the
accident insurance law dated July G, 1884, it was enacted that (section 1) "all
hands employed in mines, salines, sponging, and cleaning establishments,^
quarries, pits, wharfs, buildings, factories, and furnaces, or other employes,
whose wages or salaries do not exceed the amount of M. 2,0(X) per year, are
insured against any accident which may occur in the operation of the same
according to the provisions of this law. Tlie same applies, too, for aU hand&
or other employes engaged by any bricklayer, caiT)enter, roofer, mason, well
digger, chimney sweep, in his business. In the same sense are to be con-
sidered establishments and plants in which steam boilers or any machinery

23 4 A review of the English cases as to what constitutes a workman en-
gaged in manual labor, within the employer's liability act, will be found in
28 Ir. Law T. Itep. 355.

23 B A partial collection of statutes will be found in 2 Harv. Law Rev. 212.
Et vide Law Q. R. (London) April, 1890; 24 Am. Law Rev. 03. The En-
glish employer's liability acts (e. g. 1875, :;8 & 31) Vict; 1880, 42 & 43 Vict.)
are essentially enforced in Massachusetts and Alabama. McCauley v. Nor-
cross, 155 Mass. 584, 30 N. E. 404; Shinufci*s v. Troprietors of Locks & Canals,
154 Mass. 108, 28 N. E. 10: Downey v. Sawyer, 157 Mass. 418, 32 N. E. 054;
Cashman v. Chase, 150 Mass. 342, 31 N. E. 4.

Ch. 18] ASSUMPTION OF RISK BY SERVANT. 1055

Ksinsas statute of this cliaracter.**^ In same states acts of this
kind have been held valid only so far as concerns those employ^
engaged in the peculiarly hazardous business of railroading.^'^ On
the other hand it has been held that the statute was not limited
to any class of employ^s.^'® Unless the case at bar is shown to be

is made use of, which for its operation relies on elementary motive power,
Kueh as wind, water, steam, gas, hot air, etc., excepting those of agricul-
tural or forestry establishments not already included In clause 1 as secoud-
ury plants, as well as such machinery which, being only temporarily used,
does not constitute a part of a permanent plaut or establishment." Under this
system of insurance, the master is stimulated to use and devise safety appli-
ances, and in every way to prevent the occun*ence of accidents. In practice
the amount recoverable by the workman is not so considerable as to offer
any temptation to suffer bodily injury in expectation of large comi)en8ation
by way of a verdict The result has been a marked diminution in accideuts.

The highly complex, confused, uncertain, and unnatural system in vogue in
America has the opposite effect. Tlie expense of elaborate legal departments
on the part of the master, the contingent fee which the injured person usually
pays to his attorney, are items of expense approximating a large part of
the cost of insurance^ The possibility of large verdicts is naturally calcu-
lated to lead to the employment of Illegitimate methods on the pait of couust^l
for the injured person. It is not unnatural that fire should be fought with
fire. The result is an elusive, but material, demoralization of the bar. The
workingmau, smarting under a sense of injustice, secures laws (which in
morals, if not in law, are class legislation) against railroad companies. A
more vicious system could scarcely be devised.

28 « Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 20o. 8 Sup. Ct. IIGI. Et vide
Chicago, R. I. & P. Ry. Co. v. Stahlcy, 11 C. C. A. 88, 62 Fed. 303.

287 McAwnich v. Mississippi & M. R. Co., 20 Iowa, 338. See Deppe v. Rail-
way Co., 3C Iowa, 52; Pierce v. Railway Co., 73 Iowa, 140, 34 N. W. 783;
Smith V. Railway Co., 78 Iowa, 583, 43 N. W. 545; Frandsen v. Railway
Co., 30 Iowa, 372; Butler v. Railroad Co., 87 Iowa, 200, 54 N. W. 208; Ma-
lone V. Railway Co.. 05 Iowa, 417, 21 N. W. 750; Deppe v. Chicago, R. I. & V.
R. Co., 30 Iowa, 52; Missouri Pac. Ry. Co. v. Haley, 25 Kan. 35; Union Pac.
Ry. Co. V. HaiTls, 33 Kan. 410, 0 Pac. 571; Ilerrick v. Minneapolis & St. L.
Ry. Co., 31 Minn. 11, 16 N. W. 413; Lavallee v. St. Paul, M. & M. Ry. Co.,
40 Minn. 240, 41 N. W. 974; Johnson v. St. Paul & D. R. Co., 43 Minn. 222,
45 N. W. 150; Pearson v. Railway Co., 47 Minn. 9. 49 N. W. 302; Smith v.
St. Paul & D. R. Co., 44 Minn. 17, 40 N. W. 149; Steffenson v. Railway Co.,
45 Minn, 355. 47 N. W. 1008.

28 8 Thompson v. Central Railroad & Banking Co., 54 Ga. 509; Georgia Ry.
Co. V. Ivey. 73 Ga. 499; Ditberner y. Chicago, M. & St. P. Ry. Co., 47 Wis,
138. 2 N. W. 09.

1056 MASTER AND SERVANT. [Ch. 13

within the scope of statutory provision the common-law rule as to fel-
low servants still prevails.*'*

2»» Gen. St. Kan. 1889, par. 1251, provides that every railroad company,
organized or doing business in tliis state, shall be liable for all damages
done to any employ 6 of such company, in consequence of any negligence of
its agents, or by any mismanagement of its engineers or other employ^, to
any i)erson sustaining such damages. Held, that a firm composed of private
persons, not being a railroad corporation, having a subcontract to construct
a part of a railroad, and operating trains on the road in the prosecution of
their work, and having servants and employ^ at work upon the road, and
in charge of their trains, are not withhi the terms of this statute. SesH.
Laws 1874 (paragraph 1251, Gen. St. 1889). Beeson v. Busenbark, 44 Kan.
6G9, 25 Pac. 48. Stevens v. Railroad Co., 100 CaL 554, 35 Pac. 105; Comp.
Laws Dak. Ter. § 3753; Elliot v. Railway Co., 5 Dak. 523, 41 N. W. 7oS.
reviewing many cases. A valuable note, with numerous citations, as to the
rule determining the question of who are fellow servants, by Arthur P. Will,
8 C. C. A. 668; Connor v. Chicago, R. I. & P. Ry. Co., 59 Mo. 285. As to
Wisconsin act, see Ballon v. Railway Co., 54 Wis. 257, 11 N. W. 559. Et
vide Comp. Laws Wyo. p. 512, c. 97, 5 1; Rev. St. Mont. 1879, c. 471.
I 318; Ashley v. Hart, 147 Mass. 573, 18 N. E. 416. Act April 2, 1890 (87
Ohio Laws, 150), 9 3, defining the relation of railroad employ^, provides that
"every person in the employ of such company having charge or control of
employ^ in any separate branch or depariment, shall be held to be the supe-
rior and not fellow servant of employes in any other branch or department,
who have no power to direct or control in the branch or department in which
they are employed.*' Held, that the engineer of one train is not a fellow
servant of a brakeman on another train of the same company. Cincinnati,
H. & D. R. Co. V. Margrat (Ohio Sup.) 37 N. K. 11. An inspector of cars,
having other inspectors under him, by virtue of this act, is not a felloW serv-
ant of a brakeman. Columbus, H. V. & T. Ry. Co. v. Erick (Ohio Sup.) 37
N. E. 128. A common laborer working under the direction of a section fore-
man on a culvert on the line of a railroad and the engineer and conductor of
a passenger train on the road are employes engaged "in the same general
business," within Comp. Laws Dak. Ter. § 3753, exempting the employer from
liability for losses suffered by his employ^ in consequence of negligence of
another employed in the same general business. Northern Pac. R. Co. v.
Hambly, 154 U. S. 349, 14 Sup. Ct. 983. Act March 10. 1891, S§ 1, 2, pro-
viding that all persons engaged in the service of "any railway corporation'*
who are intrusted by "such corporation" with authority over any other em-
ployG are vice principals of "such corporation," and not fellow servants of
8uch em ploy 6; and that all persons engaged In the common service of "such
corporations," etc., neither of whom is intrusted with any control over his
fellow employ^, are fellow servants, etc.,— do not apply to the employes of a
rweiver of a railway corporation. Campbell v. Cook (Tex. Civ. App.) 24 S.
AV . 977, reversed, 86 Tex. 630, 2(J S. W. 486.

Ch. 14] WHO AKE COMMON CARKIEKS. 1057

COMMON CARRIERS.

293. Who are Common Carriera.

294. Carriers of Goods.

295. Duties.

296. Carriers of Live Stoclt.

297. Carriers of Baggage.

298. Carriers of Passengers.

WHO ABE COMMON CAHRIEB8.

298. A common carrier is one iTirho is engaged in trans-
portation for hire as a business.^

According to Mr. Schouler, the essentials of the common carrier's
relations are that the transportation undertaken must have been
for a reward, and in pnrsaance of some carrying vocation which he
exercised.* Chief Justice Gibson is authority for a criticised * posi-
tion that, even though the employment be only occasional or inci-
dental, the relationship may be established.^ As carriers by
land, the law recognizes, for example, express companies,*^ stage
coaches, or omnibuses as to baggage carried,® railways ^ as to bag-

1 Story, Bailm. (9th Ed.) 495.

a Schouler, Bailm. § 343. Wood, J., In The Nealfle, 1 Abb. (U. S.) 465, Fed.
Cas. No. 10,063, thinks this is too broad.

8 Fish V. Chapman. 2 Kelly (Ga.) 355; Schouler, Bailm. § 347; Ang. Carr.
70, 71; Hutch. Carr. S 49. But a carman undertaking casual Jobs between
uncertain places is not a common carrier. Brind v. Dale, 8 Car. & P. 207.

* GordouNV. Hutchinson, 1 Watts & S. 285. Et vide Chevallier v. Straham.
2 Tex. 115; Moses v. Norris, 4 N. H. 304.

BBank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Sweet v. Barney, 23
N. Y. 335; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689;
Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432; Railway Co.
V. Wynn, 88 Tenn. 320, 14 S. W. 311.

« Story, Bailm. |§ 496-499; Ang. Carr. § 77; Parmelee v. McNulty, 19 lU.
#56; Verner v. Sweitzer, 32 Pa. St. 208.

7 A railroad company may be liable as a carrier, though a receiver has
been appointed for it, where he merely received a portion of the net earnings

LAW OP TORTS— 67

1058 COMMON CARRIERS. [Ch. 14

gage,' freight;,* and passengers,^^ sleeping-car companies,^* and
street-ear companies.*^ As common carriers by water, the law
recognizes, for example, boats in general,*' ferries,** rafts or flat
boats/* steamboats, and merchant ships,**

It seems that a person who conveys passengers only is not a com-
mon carrier, and that, therefore, as to passengers, a railway com-
pany is not a common carrier.*^ It is certainly true that the rule
of liability as to passengers differs substantially from that as to

of tliat and other roads which are managed together, and permits it to be
managed by its oHicors and employes in connection with those of the other
roads. Pennsylvania R. Co. v. Jones, 155 U. S. 333, 15 Sup. Ct. 136; Same
V. Stewart, Id.

8 Macrow v. Great Western R. Co., L. R. 6 Q. B. 612, 618. Et vide 2 Redf.
R. R. § 171; Hannibal Ry. Co. v. Swift, 12 WaU. 262. But it would seem that
a cab proprietor is not a common carrier as to lug^ge of passengers. Ross
v. Hill, 2 C. B. 877; Powles v. Hider, 6 El. & Bl. 207.

& As to live stock, McManus v. Lancashire & Y. Ry. Co., 4 Hurl. & N. 327.
Et vide post, p. 1073.

10 Delaware, L. & W. R. Co. v. As?hley, 14 C. C. A. 308, 67 Fed. 209; St.
Joseph & G. I. R, Co. v. Hedge (Neb.) 62 N. W. 887; Lewis v. Delaware & H.
Caiial Co. (N. Y.) 40 N. E. 248.

1 1 A sleeping-car company is liable for money stolen from a passenger by
tliH porter of the car on which he is traveling. Pullman Palace-Car Co. v.
Gavin, 93 Teiin. 53, 2.? S. W. 70. Et vide Pullman Palace-Car Co. v. Miirtin,
92 Ga. 101, 18 S. E. 304; Kinsley v Lake Shore & M. S. R. Co., 125 Mass. &4;
Woodruff Co. v. Deihl, 84 Ind. 474. This, however, is by no means clear.
l»iillman l^ilnce-Car Co. v. Smith, 73 111. 300; Tracy v. Pullman Palace Car
Co., 07 How. Prac. 154. A collection of authorities on the liability oi' sloep-
iug-car companies for loss of valuables by passengers, and also as to their
liability for refusing berths, 8 Am. R. & Corp. R. 434.

12 Si)ellman v. Lincoln Rapid Transit Co., 30 Neb. 890, 55 N. W. 270.
18 I.ever Alkali Co. v. Johnson, L. R. 7 Exch. 207, L. R. 9 Exch. 33a

1* Wyckoff V. Queens County Ferry Co., 52 N. Y. 32. But not a canal com-
pany maintaining a water highway, Exchange Ins. Co. v. President of Dela-
ware & H. Canal Co., 10 Bosw. (N. Y.) 180; nor a towbridge, Grigsby v. Chap-
pell, 5 Rich. (S. C.) 443.

iR Steele v. McTyer, 31 Ala. 007.

i«2 Kent, Comm. 591); HaiTington v. M'Shane, 2 Watts (Pa.) 443: B.mett
V. Peninsular & O. Ry. Co., 0 C. B. 775; Crouch v. Loudon & N. W. Ry. Co.,
14 C. B. 255.

17 1 Smith, Lead. Caa. § 234, citing Aston v. Heaven, 2 Esp. 533; Christie v.»
(Iriggs, 2 Camp. 79; Slmrpe v. Gray. 9 Bing. 459; Blake v. Great Western R.
Co., 7 Hurl. & N. 987, 31 Law J. Exch. 340; Readhead v. Midland Ry. Co., 1..

Ch. 14] COMMON CARRIERS OP GOODS. 1059

liability for freight op baggage. Slaves, while the institution of
slavery left us by oup ancestry continued to exist in the United
States, came more under the title of live stock than of passengers.**

COMMON CAHBIERS OF GK>ODS.

294. Common carriers of freigrht for hire,^' not of live
stock, are absolutely liable as instirers for goods in-
trusted to them. The mere happening of an ipjuri-
ous accident to such goods, or their nondelivery to
the consignee, raises prima fade a presumption of
negligence, from -which the carrier may escape by
showing —

(a) That the case is -within an exemption from liability

created by contract and alloiTired by law^, or

(b) That the damage vras caused by —

(1) The act of Gh>d, or the inherent nature of what

is carried.

(2) Public enemies.

(3) The conduct of the shipper.

(4) The act or mandate of public authority.

Liability as an Insurer,

A common carrier has been regarded by the law from the earliest
time as an insurer.^® "And this/' said Lord Holt,^* "is a politic es-

R. 4 Q. B. 379; Wright v. Midland Ry. CJo., L. R. 8 Exch. 437, 42 Law J. Exch.
89. But see Bretherton v. Wood, 3 Brod. & B. 54, and Carpue v. London & B.
R. Co., 5 Q. B. 747.

18 American note to Coggs v. Bernard, 1 Smith, Lead. Cas. (8th Ed.) pt. 1, p.
454. Et vide Boyce v. Anderson, 2 Pet. 150.

i» But the delivery of freight to a carrier, and its acceptance, and trans-
portation thereof according to directions, without payment or promise of re-
ward, make the carrier liable only for damage caused by its gross negligence.
LouisviUe & N. R. Co. v. Ger8on.(Ala.) 14 South. 873.

20 Woodllef V. Curteis, 1 RoUe, Abr. 2, E, pi. 5; Coggs v. Bernard, 1 Smith.
ix»ad. Cas. (Sth Ed.) 2iiS; Dale v. Hall, 1 Wils. 281; Forward v. Plttard, 1
Term R. 27; Jones, Bailm. 103; Pozzi v. Shipton, 1 Perry & D. 4, 8 Adol. &

21 Coggs V. Bernard, 2 Ld. Raym. 009, 1 Smith, Lead. Cas. (Sth Ed.) pt. 1,
§ 213.

lOGO COMMON CARRIKHS. [Ch. 14

lablishment, contnved by the policy of the law for the safety of all
persons the necessity of whose affairs oblige them to trust these
sorts of peraons, that they may be safe in their ways of dealing;
for else these carriers might have an opportunity of undoing all per-
sons that had any dealings with them, by combining with thieves,
etc.; and jet doing it in such a clandestine manner as would not
be i>ossible to be discovered. And this is the reason the law is
founded upon that point." '

On -proof of delivery to a carrier and injury to the goods or their
nondelivery to the consignee, a presumption of negligence on the
part of the carrier arises.*-

"As a general rule, and in the absence of fraud and imposition, a
c(>mmon carrier is answerable for the loss of a package of goods,
though he is ignorant of its (5ontents, and though its contents ai*e
ever so valuable, if he does not make a special acceptance. This
is reasonable, because he can always guard himself by a special
acceptance, or by insisting on being informed of the nature and
value of the articles before receiving them." *' The extent to which
the caiTier may limit this liability by contract has already been
<*onsidered.'^ The general proposition is also sometimes modified
by statut orj' .pix>visions. ' *

There are certain recognized perils . of transportation, and for
damage caused by them the carrier is not liable. These excepted
perils will be next considered. But if the carrier is negligent, as
in exposing the goods to these perils, his negligence, and not the
peril, is the juridical cause of the wrong; and it seems that the

El. 1)03, 1 Willm., W. & H. (>24; Condict v. Gnind Trunk Ry. Co., 54 N. Y.
500; Story, Bailm. S 481). But special carriers are not insurers. AUIa v.
Voigt, 90 Mieb. 125, 51 N. W. IW.

22 Buck V. Pennsylvania R. C^)., 150 Pa. St 170. 24 AU. U78; Duer. Neg. §
122, notes 3, 4. Generally, as to warehouseman, see Claflin v. Meyer, 75 N. Y.

:iOO.

2 3 Hart V. Pennsylvania R. Co., 112 U. S. 331-340, 5 Sup. Ct. 151; Railroad
Co. V. Fraloff, 100 U. S. 24; Baldwin v. Livei-pool & G. W. S. S. Ck)., 74 N. Y.
125; McCune v. Railroad Co., 52 Iowa. TiOO, 3 N. \V. C15; Stewart v. Ripon, 38
Wis. 384: 3 Suth. Dam. (2d Ed.) ^ SS5.

24 Ante. p. 2aS, "Discharge of Torts."

2r* Rev. St. U. S. 1878, § 42S1.

Ch. 14] COMMON CARRIERS OF GOODS. 10()1

burden is on the carrier, not only to bring his case within the ex-
cepted peril, but also to show that he was without fault.**

Excqjtiona — Inherent Nature.

Natural decay or deteri(»ation from natural causes have been
classed sometimes as apparent exceptions to the liability of the
carrier, and sometimes as falling within the category of the act of
God. "Men are too apt to hear God in the thunder and storm, and
ignore his existence in the still small voice of the calm. But the
acts of God are not always cataclysms, and 'natural decay- may as
reasonably be classed under this head as 'tempests' or 'lightnings.' " *^
Thus, the carrier cannot be held liable for diminution of liquids by
means of evaporations during the journey.*® But to include too
many natural effects in the class "act of God" may easily become
irreverent; *• and it would seem otherwise expedient also to recog-
nize inherent nature as a separate class of exceptions. Thus, it
has been held that if stoves shipped are unusually brittle, and likely
to break on mere handling, it is error to charge that, if goods were
received in good order and delivered injured, a legal presumption
of negligence followed, unless it can be shown how the injury hap-
pened.*®

Same^-'Act oj God.

The "act of God" is a phrase concerning which there has been a
vast amount of dispute. It seems, however, that it refers, if not
necessarily to the violence of nature, at least to the act of nature,
and implies the entire exclusion of all human agency, whether of

«« Duer. Neg. § 110, coUecting cases on both sides of this proposition. But
see RaUroad Co. v. Beeves, 10 Wall. 176; The J. C. Stevenson, 17 Fed. 540;
Ldttle Rock Ry. Co. v. Corcoran, 40 Ark. 375. The cases would seem to be
not much more than evenly balanced on this point

2T Wood's Brown, Carr. 184.

2« Hudson V. Baxendale, 2 Hurl. & N. 575. And see Hunnewell v. Taber, 2
Spr. 1, Fed. Cas. No. 6,&S0; Farra v. Adams, BiiH. N. P. (>9; Warden v.
Greer, 6 Watts (Pa.) 424; Nelson v. Woodruff, 1 Black, 156; Clark v. Barnwell,
12 How. 272; Tysen v. Moore, 56 Barb. (N. Y.) 442.

2» The same exception here involved is logically applied to exempt carriers
of live stock from liability for inherent vice of live stock. Accordingly, to
classify inherent nature under act of God mi^ht lead to treating the kick of a
mule as having a divine origin.

80 Buck V. Pennsylvania R. Co.. 150 Pa. St. 170. 24 AU. 678.

I0'>2 COMMON CAREIE1». [Ch. 14

carrier or third persons.'^ The ciTil law- emplojs, as a correspond-
ing term, -vis major.* •* IneTitable accident is by no means synony-
mouSy for an accident due to homan force or frand might be pro-
noonced inevitable^ while the act of (Sod, on the contrarr, means
something which is opposed to the act of man." A gast of wind is
the act of God; '^ so is the freezing up of canals and rivers,'' bad
weather ^* generally, or a sudden flood.'' but a conflagration is
not.'^ Perils of the sea, sach as lightning and tempest, seem to
have a broader meaning than the act of God as commonly defined.'*

"5 American note to Coggs t. BernanU 1 Smitli, Lead. Caa. <Stli Ed.) pt. 1,
p. 423; 2 Redf. R. R. p. 151, note S; Uutch. Carr. § 17L etc.; Story. BaUm.
H 4^S!>. 49U. 511; Schoul^r. Bailm. i2d Ed.) f 410; 2 Kent. Comm. 597;
Ang. Carr. H 154. loo; Hayes t. Kennedy, 41 Pa. St. 37S; per Lowrie, C. J..
ivTiewins: cases, McAnhur t. Sears, 21 Wend. (N. Y.) ll»u; Mersbon v. Ho-
bensaok. 22 N. J. Law, ;^1; Chevallier y. SCnkam, 2 Tex. 115-125; Back-
house V. Sneed. 1 Man>h- <X. C.) 173; Sniyri v. Xivlun. 2 Bailey «S. C.| 421;
Falkner v. Wright. Ru-e «8. C.) 107; Williams t. Grant. 1 Conn. 4t>7 iwhen?
a Mohammeilan extension of the phrase "^ct of God** is given); 1 Smith,
Iji^uL Cas. 424. It was here held that a hidden rock in the sea not before
known to navigators;, and not known to master of vessel, occasioning a
wrei-k. wa5 an act of God.

»2 Whart. Xeg. §| 122. »».

»3 S<ht»uler. Bailm. | 41o. citing Forward ▼. Pittard. 1 Term R. 27;
Trent Nav. Co. v. Wood, 4 Doug. 2SlV AjhI see Wright, J., in Merritt v.
Karle, 29 X. Y. 115.

'* .\mics V. Stevens, 1 Strange, 12S. Cf. Coll v. McMe«*han. 6 Johns. (N. Y.)
lOU.

-' B^.wman v. Tcall. 23 Wend. <X. Y.) 3lH»; Harris t. Rand, 4 X. H. 2Si;
Cnisby V. Fitch, 12 Conn. 410.

i« Xusrcnt v. Smith, 1 C. P. Div, 19, 423; Railn^d Co. v. Reeves, 10 Wall.
170: Mit-haels v. Xew York Cent. R. Co., 30 X. Y. 5«*i4; Morrison v. Darts,
2«> Pa. St. 171. As a snow storm. Vail v. Pacific Ry. Co., 63 Mo. 230.

3- XashviUe & C. R. R- Co. v. David. 6 Heisk. a*enn.i 2«51; Railroad Co. v.
Reeves. 10 WalL 170: Kc:id t. Siwulding. 30 N. Y, 6:^J; Wallace v. Clayton,
42 r;a. 44;5.

3>Fi>rwanl v. Pinar\l, I Term U. 27; Gatliffe v. Bourne, 4 Bing. N. C.
314: Amerii^n Transp. Co. v. MiM*re, 5 Mich. 3i^; HcMcr t. McCartney.
31 Ala. .va: Condict v. Grand Trunk R Co., 54 X. Y. ,V^.i: I^mb ▼. Camden
& A. R. Co.. 4i; X. Y. 271.

i* Klhott V. Rv»ss*»ll. 10 Jt'hns. iX. Y.> l-i>: Johnson v. Friar, 4 Yerg. (Teim.)
4S; GonK»n v. Biuhanau, 5 \crg. ri^nn.i 71, 7S K!; ll.iys v. Kennedv, 41 Pa.

Ch. 14] COMMON CARRIKRS OF GOODS. 1063

Losses by fire or explosion are occasioned by causes for which the
carrier is responsible, unless except in cases of lightning stroke, or
perhaps of spontaneous combustion.*® If, however, the fault or neg-
ligence of the carrier is the cause of the wrong, although the act of
(lod was a condition, the carrier is liable. Thus, if a carrier ex-
poses goods to a dangerous flood, he is responsible for consequent
injury.*^ There is much confusion in the cases as to whether the
act of God is a cause or a condition when the alleged injury would
not have occurred except for the delay of the carrier.**

Same — PMic Enemies.

Public enemies are those with whom the state is at open war.*'
Thus, pirates on the high seas are the enemies of the state and of
mankind.** The confederate insurgents of 1861 and the hostile tribes
of Indians have been regarded as public enemies in the United
States.* ** It was said in Coggs v. Barnard *** that "though the force
be ever so great, as if an irresistible multitude should rob him,
nevertheless, he [the carrier] is chargeable." The rule at the pres-
ent time would seem to be, however, that where a carrier receives

St. 378; dissenting opinion of Thompson, J., in 3 Grant, Gas. (Pa.) 357;
Friend v. Wood, G Grat (Va.) 189; Merritt v. Earle, 31 Barb. 47; Fergusson
V. Brent, 12 Md. 33. Et vide American note to Coggs v. Bernard, 1 Smltli.
Lead. Cas. pt. 1, p. 426 et seq.

*o Scbouler, Bailm. § 411.

*i Charleston & C. S. B. Co. v. Bason, 1 Harp. (S. C.) 262; Campbell v.
Morse, Id. 468. So if the vessel be iinseaworthy. Bell v. Reed, 4 Bin. (Pa.)
127. And, generally, as to deviation from usual course, see Davis v. Gar-
rett, 6 Bing. 716; Express Co. v. Kountze, 8 Wall. 342; W^iUiams v. Grant,
1 Conn. 487; The Delaware, 14 Wall. 579.

*« A full discussion of these cases will be found in Hutch. Carr. c. o.

4 3 Story, Bailm. § 526. Et vide Gage v. Threll, 9 Allen (Mass.) 299. An
article on the liability of carriers for the robbery of railway passengers, with
reference to the recent case of Ck)bb v. Great Western Ry. Co. [1893] 1 Q. B.
459. Justice of the Peace, reprinted in 28 Ir. Law T. 459.

4* Pickering v. Barclay. 2 RoUe, Abr. 248, Style, 132; Barton v. Wolliford,
Comb. 56.

4 5 Schouler, Bailm. § 418, citing, inter alia, McCranie v. Wood, 24 La. Ann.
4(K5; Philadelphia R. Co. v. Harper, 29 Md. 330; Holladay v. Kennard, 12
Wall. 254. Et vide Southern Exp. Co. v. Wormack. 1 Heisk. (Tenn.) 2.56; U.
S. V. Palmer, 3 W^heat. 610; Thorlngton v. Smith, 8 Wall. 1.

46 2 Ld. Raym. 909-918.

1064 COMMON CARRIERS. [Ch. 14

freif'^ht for shipment, and its employes strike, or cease to work for
tlu? company, it is still bound to forward the freight within a rea-
sonable time; but if the strike is accompanied by violence and in-
timidation, so as to render it unsafe to forward the freight, the com-
pany is thereby relieved from liability for the delay, especially when
the resistance made by the strikers is of such a character as could
not be overcome by the company or controlled by the civil au-
thorities when called ui>on by it.*^ But where trainmen allowed
thieves to break open a car containing whisky, and the car was
overtaken by the Johnstown flood, the consequent loss did not arise
from unavoidable accident or the act of God, nor from insurrection,
public enemy, or a mob, and the carrier was accoi^dingly held lia-
ble.*«

Same — Conduct of Shipper.

The plaintiff's own wrong may prevent his recovery against a car-
rier on essentially the same principle which would disentitle him to
recover in any otber action of tc«t. Thus, if damage to the goods
be done by bad packing, he cannot recover.** But, where improper
loading may be negligence on the part of consignor which is attrib-
utable to his consignee, it will not bar recovery if such improper
loading was apparent to the ordinary observation of the carriers
servants."*^ So, if the shipper of live stock fails to comply with his
contract as to feeding and watering, whereby the stock was injured,
he cannot recover, though the company delayed transportation.'^^

*7 Haas v. Kansas City. Ft. S. & G. R. Co., 81 Ga. 792, 7 S. B. (C9. Et
vide Geismer v. I^ke Shore & M. S. Ry. Co., 102 N. Y. 563, 7 N. B. 828. Cf.
Lake Shore & M. S. R. Co. v. Bennett, 0 Am. & Eng. R. Cas. 391; Schouler,
Bnllm. § 419.

*8 Lang V. Pennsylvania R. Co., 154 Pa. St 342, 26 Atl. 370. Et vide Story,
Ballm. § 520, and cases cited.

4» Shrlver v. Sioux City, etc., R. Co., 24 Minn. 506; Goodman v. Oregon R.
& Nav. Co., 22 Or. 14, 28 Pac. 894. Recital in hill of lading that goods are
received in apparent good order is only prima facie evidence of that fact St
Louis, A. & T. Ry. Co. v. Neel, 56 Ark. 279, 19 S. W. 963. In absence of evi-
dence to contrary, presumption is that goods were received in good order.
Henry v. Central Railroad & Banking Co., 89 Ga. 815, 15 S. E. 757. Et vide
Goodman v. Oregon R. & Nav. Co , 22 Or. 14, 28 Pac. 894.

60 McCarthy v. I^iiisville & N. R. Co (Ala.) 14 South. 370.

61 Boaz V. Central R. Co., 87 Ga. 463, 13 S. E. 711,

Ch. 14] COMMON CARRIERS OP GOODS. 1065

But the law will not allow a carrier to connect a i^ipper with its
own wrong. Express contracts limiting liability are scrutinissed
with care, especially since "it cannot be said in truth that a volun-
tary contract was made where the terms are imposed by one and
the other has no power to repel them." '* And what is not allowed
to be done expressly cannot be done by implication. Accordingly,
if the law does not i)ermit contracts against negligence, it will not
allow a carrier to accomplish the same result by giving notice of
danger or defect, and escaping because shippers were notified or
knew of defects or dangers.^' And if the freighter must submit to
an injurious detention of his property, or to the use of a vehicle
having a reasonable defect, from which but slight damage could
result during a transit in a reasonable time, his election to use the
vehicle is not such negligence as to exonerate the carrier from fur-
ther damage resulting from an extraordinary detention.**

Same — Public Authority.

The common carrier is not liable if goods be taken fi*om his pos-
session by legal proceedings against the owner, or if, without his
fault, they become obnoxious to the requirements of the police pow-
ers of the state, and are injured or destroyed by its authority; as
where they are infected with contagious disease, or whei-e intoxi-
cating liquors intended for use are sold in violation of the laws of
the state, which require their seizure and destruction. ""^ The prin-
ciple of the exception is that the carriers are not obliged to violate
the law of the jurisdiction to comply with its contract.** To pro-
tect the carrier in such cases, however, it is necessary that the seiz-
in KiinbaU v. Rutland & Burlington R R., 26 Vt. 247.

58 Welsh V. Pittsburgh, Ft. W. & C. R. Co., 10 Ohio St. 73 (where the loss
of cattle arose from a defective door or fastening on the cars known to plain-
tiff); Union Pac. R. Co. v. Ralney, 19 Colo. 225, 34: Pac. 980 (It Is not negli-
gence for a shipper not to see that slats are so far apart as to allow horses to
put feet through them). Et vide Powell v. Mills, 37 Miss. G91.

64 McDanlel v. Chicago & N. W. Ry. Co., 24 Iowa, 412, 418; Harrfs v. North-
em Indiana R. Co., 20 N. Y. 232.

05 Atkinson v. Ritchie, 10 East, 530, 534; Williams, J., In Railroad Co. v.
O'Donnell, 49 Ohio St. 489-^00, 32 N. E. 476. Et vide Wells v. Maine S. S.
Co., 4 cuff. 228, Fed. Cas. No. 17,401; Bllven v. Hudson R. R. Co., 30 N. Y.
403, 407.
8« Wells V. Maine S. S. Co., 4 Cliff. 228, Fed. Cas. No. 17,401.

1066 COMMON cARRiEifS. fCh: 14

ure be made within the procurement or connivance of the caiTier,
and that the proceeding or process under which it waa made apr
pear to be valid, and that the carriers give prompt notice to the
owner. '^

SAME— DUTIES.

296. Common caxriers are tinder a duty to the public for
the violation of iTirhich an action for tort may be
brought —

(a) To receive,

(b) To transport, and

(c) To deliver to the proper consignee the property

shipped, or to exercise the care of a ivarehouseman
in preserving it on failure of the consignee to re-
move after notice.

Acceptance,

The carrier's liability commences with the complete delivery of
the goods to be shipped to him/* When the property actually
reaches his control, no question can well arise; but it seems that
the delivery may be actual or constructive, to him or to his author-
ized agents.'*"* The delivery is properly made when it accords with
the carrier's rules, '^^ or the known and established usages of the
particular trade involved.®^ "AVeknow of no general rule of law which
governs the delivery of a bill of goods under a bill of lading when
such delivery is not expressly accoi-ding to the terms of the bill of

57 Railroad Co. v. O'Donnell, supra; Gibons v. Farwoll, 63 Mich. 344, 20
N. W. 855; KlfT v. Old Colony Ry. Co.. 117 Mass. 51>1; Ohio & M. Ry. Co.
V. Yohe, 51 Ind. 181.

8 8 Missouri Pac. Ry. Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 090.

»» Thus, signing a bill of lading by the agent of cotton yard where the
goods are stored is good delivery. Bennitt v. The Guiding Star, 53 Fed. 030;
Capehart v. Granite Mills, J)7 Ala. 353, 12 South. 44. As to delivery of sup-
plies entitling to maritime lien, see The Vigilancia, 58 Fed. 698; Merriam v.
Hartford & N. H. R. Co., 20 Conn. :i54; White v. Winnisimet Co., 7 Cush. 125;
Armistead Lumber Co. v. Louisville, N. O. & T. R. Co. (Miss.) 11 South. 472.

•0 Louisville & N. R. Co. v. P:chols, 97 Ala, 556, 12 South. 304.

«i Deming v. Merchants' Cotton-Press & Storage Co., 90 Tenn. 306. 17 S. W.
80; New England Manuf'g Co. v. Starn, <K) Conn. 369, 22 Atl. l>5:i; Michigan
V. Ward, 2 Mich. 543; Evansville & C. Ry. Co. v. KeiUi, 8 Ind. App. 57, 35 N.
E. 296.

Ch. 14] COMMON carru:rs of goods. lOG?

lading, except that it must be a delivery according to the practice
and custom usually observed in the particular place of delivery."**
At common law, an action may lie for an unjustifiable refusal or
delay in accepting shipments tendered.*' The liability of a com-
mon carrier for the refusal to receive and convey is subject to these
qualifications, viz.: (1) That the party owning the chattel should
offer for hire; (2) that the common carrier's means of safe convey-
ance should be adequate; (3) that such carriage should be in the
line of his vocation.** Such liability is often determined or altered
by specific contract.** Where delay in the shipment of freight, de-
livered for immediate shipment, is due to the failure of the com-
pany to furnish cars, the company is liable on its destruction by
fire, though the shipping contract requires the shippers to load the
freight** It has also been materially and alniost universally al-
tered by statute. Thus, under the interstate commerce act, reasonably
proper and equal facilities for the interchange of traffic are com-
manded, but without requiring the carrier to give the use of its
tracks or terminal facilities to another carrier engaged in like busi-
netes.*^ The violation of this portion of the act gives rise to an
action as for a tort.**

«2 Gatliffe v. Bourne, 4 Bing. N. C. 314-329 (Tiiidal, C. J.); Constable v. Na-
tional S. S. Co., 154 U. S. 51, 63, 14 Sup. Gt 10G2.

«8 Union Pac. Ry. Co. v. Goodrldge, 149 U. S. 680, 13 Sup. Ct 970; Crouch
v. London & N. W. Ry. Co., 14 C. B. 255; Freeman v. Louisville & N. R. Co..
32 Fla. 420, 13 South. 892, and authorities, page 425, 32 Fla., and page 892, 13
South.; New Jersey Stoam Nav. Co. v. Merchant's Bank, 6 How. (U. S.) 344;
Cole V. Goodwin, 19 Wend. (N. Y.) 261.

0 4 Schouler, Bailm. c. 3, § 372, discussing these qualifications at length. Et
vide Wood's Brown, Carr. §§ 71-74; 1 Smith, Lead. Cas. 237.

65 Gulf, C. & S. F. Ry. Co. v. Wright, 1 Tex. Civ. App. 402, 21 S. W. 81;
Pittsburgh, C, C. & St L. Ry. Co. v. Racer, 5 Ind. App. 209, 31 N. E. 85.'J. A
collection of authorities on the rights and remedies of shippers for unjust dis-
crimination as to freight, 9 Am. R. & Corp. R. 019. An extensive note, with
numerous citations, as to some phases of unjust discrimination and undue
preference or prejudice under the common law and the statutes, Id. 273.

e« London & L. Fire Ins. Co. v. Rome, W. & O. R. Co., 68 Hun, 598, 2:^ N. Y.
Supp. 231, affirmed 144 N. Y. 2(X>, 39 N. E. 79.

•7 Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 56
Fed. 925; Oregon Short Line & U. N. Ry. Co. v. Northern I'ac. R. (^o., 51
Fed. 465.

esOsborn v. Chicago & N. W. R. Co., 48 Fed. 49. As to state ri'gnlntion,

lOiiS COMMON CAURIEUS. [Ch. 14

Tramportaiion,

In carrying the goods to their destination, the common carrier and
his servants are bound to transport safely, with reasonable dispatch,
by the prescribed or customary route.®*

The carrier is held to the liability of an insurer for the goods
while they are being canned J *^ His duty applies alike to proper
loading, adequate propelling force, and safe and suitable vehicles.^ ^
If no time be stipulated, he is bound to carry within a reasonable
time.^^ He is liable in damage for delay; ^'^ and neither unusual
pressure of business,^* disobedience of employes,' ^ nor avoidable

SCO Llttlefiold V. Fitchburg R. Ck)., 158 Mass. 1, 32 N. E. 859; Galveston, H. &
S. A. Ry. Co. V. Schmidt (Tex. Civ. App.) :>5 S. W. 452; Norfolk & W. R. Co. v.
Adams (Va.) 18 S. E. (573.
6 9 Schouler, Bailm. § 403.

70 See cases collected in 13 Lawy. Rep. Ann. 33. The reason for this severe
rule of policy will be found discussed in Schouler, Bailm. §§ 4(KJ-408.

71 Sharp V. Grey, 9 Bing. 457; Lyon v. MeUs, 5 East, 428; Hoosier Stone
Co. V. Ix)uisvlUe, N. A. & C. Ry. Co., 131 Ind. 575, 31 N. E. 3(55; The Northern
Hi^lle, 9 Wall. 526; Tucker v. Peunsylvania R. Co., 10 Misc. Rep. 35, 30 N. Y.
Supp. 811; Branch v. Wilmington & W. Ry. Co., 77 N. C. 347; Hunt v. Nutt
(Tex. Civ. App.) 27 S. W. 1031; Schouler, Bailm. § 402. A water carrier
warrants by implication, not that he has honestly endeavored to make his
vessel fit and safe for the particular freight he is to carry, but that she is in
fact reasonably fit Lyon v. Mells, 5 East, 428; Kopitoff v. Wilson, 1 Q. B.
Div. 377; Steel v. State Line S. S. Co., 3 App. 72; Stanton v. Richardson, L.
R. 9 C. P. 390; The Northern Belle, 9 WaU. 52G.

72 Taylor v. Great Northern Ry. Co., L. R. 1 C. P. 385; Raphael v. Pick-
ford, 5 Man. & G. 551; Johnson v. East Tennessee, V. & G. Ry. Co., 90 Ga.
810, 17 S. E. 121; Beckwith v. Frisbie, 32 Vt. 559; I^we v. East Tennessee,
V. & G. Ry. CJo., 90 Ga. 85, 15 S. E. 092; Thomas v. Wabash, St. L. & P.
Ry. Co., 63 Fed. 200; Hackett v. B. C. & M. R. R., 35 N. H. 390; Hawkins v.
Hoffman, 6 HiU, 586; Black v. Baxendale, 1 Exch. 410; Hamlin v. Great
Northern Ry. Co., 1 Hurl. & N. 408. As to what is reasonable time in view of
aU the circumstances, see Hughes v. Great Western Ry. Co., 14 C. B. (537;
Nudd V. Wells, 11 Wis. 407; Hand v. Baynes, 4 Whart. 204.

T8 Davis V. Jackson viUe S. E. Line (Mo. Sup.) 23 S. W\ 905.

74 Louisville & N. R. Co. v. Touart, 97 Ala. 514, 11 South. 756; Gulf, C. &
S. F. R. Co. V. M'Aulay (Tex. Civ. App.) 26 S. W. 475; Great Western R. Co.
V. Hawkins, 18 Mich. 427; Empire Tea Cx). v. Wamsutta Oil Ck)., 63 Pa. St.
14; Toledo, W. & W. R. Co. v. Lockhart, 71 111. 627; Gulf, C. & S. F. Ry. Co.
V. Hume (Tex. Sup.) 27 S. W\ 110.

75 Not amounting to a strike, Central Railroad & Banking Co. v. Georgia
Fruit & Vegetable Exchange, 91 Ga. 389, 17 S. E. 904.

---1

Ch. 14] COMMON CARRIERS OF GOODS. 1069

accident ^' will justify delay whereby the goods are damaged."^ In-
deed, the cases have gone so far as to hold that Inevitable accident
is no excuse for failure to carry within time agreed upon.^'* Where
delays arise, however, preference should be given to perishable goods
alreadv received.^®

Delivery to Consignee.

The cari'ier is not liable for misdelivery if in making such delivery
he has followed the usual course of business.*® The liability, after
it has attached, does not cease until there has been a delivery of
goods according to contract, statute, or usage of business.®^ On
arrival at the destination, the carrier, as a warehouseman, is bound
to keep the goodfi with ordinary care, and to deliver them on de-
mand, within a reasonable time, and on payment of reasonable char-
ges, and to have an agent ready to deliver them at reasonable time.
If, through breach of any of these duties, as of that of the agent,
the property is destroyed by fire, the carrier is liable. Under such
circumstances, the carrier is held, not to the liability of an insurer,

7« Receivers of Missouri, K. & T. Ry. Co. v. Olive (Tex. Civ. App.) 23 S.
W. 526.

7T Thus, a railroad company is liable for veuisou spoiled, Cantwell y. Pacific
Exp. Co., 58 Ark. 487, 25 S. W. 503; for damage done to grapes by delay, Grin-
neU V. Wisconsin Cent Co., 47 Minn. 561), 50 N. W. 891; Gulf, C. & S. F. Ry.
Co. V. Hume (Tex. Civ. App.) 24 S. W. 915; Missouri Pac. Ry. Co. v. Russen
<Tex. Sup.) 18 S. W. 594.

T8 Harmony v. Bingliam, 12 N. Y. 99. Et vide Hutch. Carr. § 319, note 1.

7»Peet V. Chicago & N. W. Ry. Co.. 20 Wis. 624; Great Western Ry. Co.
V. Burns, tiO 111. 284. In Michigan Cent. Ry. Co. v. Burrows, 33 Mich. 6, pref-
erence to goods for the relief of Chicago fire suffercra was justified. Et vide
Marshall v. New York Cent. Ry. Co., 45 Barb. (N. Y.) 502.

80 Farmers' & Mechanics' Bank v. Champlain Transp. Co., 23 Vt. 186; Rich-
mond V. Steamboat Co., 87 N. Y. 240; Gibson v. Culver, 17 Wend. 305; The
Boston, 1 Low. 464, Fed. Cas. No. 1,671; The Sultana v. Chapman, 5 Wis.
454; Dixon v. Dunham, 14 lU. 324; Salmon Falls Co. v. The Tangier, 1 Cliff.
396, Fed. Cas. No. 13,743; Gates v. Chicago, B. & Q. R. Co., 42 Neb. 379, m
N. W. 583. Cf. Savannah, F. & W. Ry. Co. v. Sloat, 93 Ga. 803, 20 S. E. 219;
ante, p. 734, "Trover and Conversion and Ministerial Duties."

81 Kirk V. Chicago, St. P., M. & O. Ry. Co. (Minn.) 60 N. W. 108i; Farm-
ers' & Mechanics' Bank v. Champlain Transp. Co., 18 Vt. 131-140; Richardson
V. Goddard, 23 How. 39; Chicago & R. I. R. Co. v. Warren, 16 111. 505; Con-
atable v. National S. S. Co., 154 U. S. 51, 14 Sup. Ct. 1002.

1070 COMMON CARRIERS. [Ch. 14

as a common carrier, but to such care as a wareJiousemaii would
take of his own property."* If the consignee is present on arrival
of iroods, he must take them away at a reasonable time; if not pres-
ent, lie or his aji^ont living at the place of destination should be noti-
fied/' If the goods are not then removed within a reasonable time,
their loss falls on the consignee, provided the carrier has exercised
the care of a warehouseman.®* Tlius, if the consignee is dead or
cannot be found, the carrier should store them at the owner's risk
and expenses.*" Failure of the can*ier to deliver to the proper con-
signee, after reasonable opportunity to determine his legal rights,
creates a liability for damage sustained by consignee.**

Damages.

Where property delivered to a common carrier for shipment is
destroyed while in transit, the meaisure of damages is the market

8 2 E. O. Stanard Milling Co. v. White Line Cent. Transit Co. (Mo. Sup.)
26 S. W. 704; St. Louis & S. F. Ry. Co. v. Dodd (Ark.) 27 S. W. 227 (under
contract); East Tennessee, V. & G. Ry. Co. v. Kelly, 91 Tenn. 699-708, 20
S. W. 312, 314; Deroela v. Winona & St. P. R. Co., 18 Minn. 133 (Gil. 119);
Arthur v. St. Paul & D. R. Co., 38 Minn. 95, 35 N. W. 718 (under contract).

88 As to statutory requirements of notice, see Wilson v. California Cent. Rj'.
Co., 94 Cal. 160, 29 Pac. 861. If, after arrival, in violation of general and
uniform custom, the carrier fails to give notice of arrival of goods, and they
are injured by the act of God, as a freshet, the canier is liable for negligence.
Richmond & D. R. Co. v. W^hite, 88 Ga. 805, 15 S. E. 802.

84 Kasnight v. Railroad Co., Ill N. C. 592, 16 S. E. 323; Hasse v. Americau
Exp. Co., 94 Mich. 133, 53 N. W. 918; Wald v. Railroad Co. (Ky.) 18 S. W.
850; Moses v. Boston & M. R. Co., 32 N. H. 523; Gregg v. IlUnois Cent. R.
(^.o., 147 111. 550, 35 N. E. 343; E. O. Stanard Milling Co. v. White Line Cent.
Transit Co. (Mo. Sup.) 26 S. W. 704. And see Constable v. National S. S. Co..
154 U. S. 51, 14 Sup. Ct. 1062, discussing contractual limitations on lia-
bility after unloading, discharge at otlier than usual place, and notice to
consIgn<'e.

HSFisk V. Newton, 1 Denio, 45; Rowland v. Miln, 2 Hilt (N. Y.) 150,
153; Crawford v. Clark, 15 111. 561; Young v. Leary, 135 N. Y. 569, 32
N. E. 607. Leaving a car of Avheat on a side track threatened by rising
water was held to be a failure to exercise ordinary caie, and the owner of
the wheat recovered. Baltimore & O. Ry. Co. v. Ko?(ly, 75 Md. 320. 23 Atl.
<)43. Cf. Charlotte, C. & A. R. Co. v. Wooten, 87 Ga. 203, 13 S. E. .509.

86 But in such an action mere brusqueness on the part of tlie agent, not
amounting to insult, is not a ground for punitive damages. Illinois Cent. R.
Co. V. Brookhaven Mach. Co., 71 Miss. 6(i:{, 16 South. 252.

Ch. 14] COMMON CARRIERS OF GOODS. 1071

value of the property at its place of destination, at the time it
should liave been delivered there.®'

Sanie — Connecting Lines,

Where property is shipped over connecting railroads, express or
freight lines, and is injured in transit, the question arises to to the
responsibility of the carrier who originally undertook to transport
from one point to another, the intermediate carrier, independent car
company, and others. Here the proper parties defendant are often
determined by construction of the contract entered into in each
case.^® They may be joint tort feasors.®® If the contract provides
expressly or impliedly, by bill of lading or receipt, for a through
transportation, the original carrier is clearly liable.®'* There is, how-
ever, much difference of opinion whether, in the absence of any
express contract, the carrier who originally received the goods is
liable for any negligence outside of his own immediate line. In
Muschamp v. Lancaster & P. J. Ry. Co.®^ it was determined that,
where goods are delivered to be earned by a railway company from
one terminus to another, the jury may find that this company is
sinswerable for the entire transportation, although intermediate
carriers carried the goods part of the distance. In this case, there
was no contract apart from the ordinary booking, and no proof of
partnership between the original and the connecting company. The
English rule in accordance with this case would seem to be that, in
the absence of contract modification, a carrier who undertakes to

87 AtchlRon, T. & S. F. R. Co. v. Lawler, 40 Neb. 35fJ, 58 N. W. 068; 'Ala-
bama & V. Uy. Co. V. Searlos, 71 Miss. 744, 10 South. 2Tu).

8 8 Galveston. 11. & S. A. Ry. Co. v. Short, Zl S. W. 142-147.

89 Atlantic & P. R. Co. v. Laird, 7 C. C. A. 48i), 58 Fed. 700. As to crarrylng
passenpers, vide Wisconsin Cent. R. Co. v. Ross, 142 111. 9, 31 N. E. 412. As
to lessees, vide Baxter v. Railway Co. (Tex. Civ. App.) 22 S. W. 1002; Wabash
R. Co. V. Williamson, 3 Ind. App. 190, 29 N. B. 455. Joint and through
tariff rates do not make carriers liable as Joint tort feasors. Wehmann v.
Minneapolis, St. P. & S. S. M. Ry. Co. (Minn.) 59 N. W. 540.

»o Caudee v. Pennsylvania R. Co., 21 Wis. 582; Davis v. Jacksonville S.
E. Line (Mo. Sup.) 28 S. W. 905; Railroad Co. v. Androscoggin Mills, 22 Wall.
594; Central Railroad & Banking Co. v. Georgia Fruit & Vegetable Exchange
Co., 91 Ga. 389, 17 S. E. 904; Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438,
28 N. E. 394.

»i 8 Mees. & W. 421.

1072 COMMON CARRIERS. [Clj. 14

transport from one point to another is liable for the negligence of
the intermediate carrier.®^ It has been followed "' and denied •*
by many American cases. The intermediate carrier who is liable for
his own negligence is relieved by delivery to the succeeding carrier,*"
or giving the next carrier notice of arrival of goods and a i-eason-
able time for it to receive them. It is not liable thereafter for the
latter's inability to receive.®' Where property transported by suc-
cessive carriers has been injured in transit, in the absence of evi-
dence to the contrary, the injury is presumed to have been caused
thix)ugh the fault of the last carrier. He is presumed to have re-
ceived goods in good order.*^ The right of the owner of the goods

»2 Bri9toI & E. Ry. Co. v. CoUins, 7 H. L. Caa. 194. As to paasenj^crs, see
Great Western Ry. Co. v. Blake, 7 Hurt. & N. 987.

»» Nashua Lock Co. v. Worcester & N. Ry. Co., 48 N. H. 339; Ullnois Gent.
Ry. Co. y. Frankenbergi. 54 lU. 88; Bank of Kentucky v. Adams Exp. Co.,
93 U. S. 174; Centi-al R. Co. y. Combs, 70 Ga. 533. Et vide cases coUected
sections 147 and 148, Hutcb. Can*.; Jennings v. Grand Trunk Ry. Co., 127 N.
Y. 438, 28 N. E. 394. And see Tolman v. Abbot, 78 Wis. 192, 47 N. W. 264;
Illinois Cent. R. Co. v. Kerr, 68 Miss. 14, 8 South. 330.

9^ Nutting T. Connecticut Ry., 1 Gray (Mass.) 502; Burroughs y. Norwich
& W. R. Co., 100 Mass. 26; Railroad Co. y. Forsyth, 61 Pa. St 81; Irish
y. Milwaukee & St. P. Ry. Co., 19 Minn. 376 <GU. 323); Raihroad Co. y.
Manufacturing Co., 16 Wall. 318.

»6 Pratt V. Railway Co., 95 U. S. 43; Church y. Atchison, T. & S. F. R. Co.,
1 Okl. 44. 20 Pac. 530; Wehmann y. Railway Co. (Minn.) 59 N. W. 54a As
to what is apparently improper loading of a car deliyered by one carrier to
a connecting carrier, see McCarthy v. LouisyiUe &, N. R. Co. (Ala.) 14 South.
370. ' As to Uability of consolidated roads, see State y. Baltimore & L. R. Co.,
77 Md. 489, 26 Atl. 865; Atchison, T. & S. F. R. Co. y. Richardson, 53 Kan.
157, 35 Pac. 1114; Zealy y. Electric Co., 99 Ala. 579, 13 South. 118; Cleye-
land, C, C. & St. L. Ry. Co. y. Prewitt. 134 Ind. 557, 33 N. E. 367.

•0 Palmer y. Atchison, T. & S. F. R. Co., 101 Cal. 187. 35 Pac. 630.

»T Texas & P. Ry. Co. y. Bamhart, 5 Tex. Ciy. App. 601, 23 S. W. 801, and
24 S. W. 331. And see Missouri Pac. Ry. Co. y. Breeding (Tex. App.) 16 S.
W. ISi; Western Ry. Co. v. Hanvell, 97 Ala. 341, 11 South. 781; Central
Railroad & Banking Co. y. Bayer, 91 Ga. 115, 16 S. E. 953; Leo y. St Paul,
M. & M. Ry. Co.. 30 Minn. 438, 15 N. W. 872; LouisyiUe & N. R. Co. y.
.Jones, 100 Ala. 2(3. 14 South. 114; Forrester y. liailroad Co., 92 Ga. 699, 19
S. E. 811; Joseph y. Raih^ad Co., 88 Ga. 426, 14 S. E. 591 (by statute); Falson
V. Alabama & V. Ry. Co., 69 Miss. 569, 13 South. 37. Liability of first carrier
as to goods deliyered to connecting carrier. Miller y. South Carolina R. Co.,
33 S. C. 350, 11 S. E. 1093.

Ch. 14] CARRIERS OF LIVE STOCK. 1073

to sue either the original carrier or the intermediate carrier by
whose fault the damage was caused is generally recognized.**

CABBIEBS OF LIVE STOCK.

286. A carrier of live stock is liable for the performance
of dutieli -v^henever a carrier of other freight would
be. His liability is especicdly contiiigeiit upon the
inherent vice, disease, or condition of the animals
shipped.

It has been insisted that "the carriage of live stock is not, 'under
the custom of the realm/ the proper subject of a common carrier at
all. Live stock can in no proper sense be called goods or produce
in the carriage of which the oflSce of the common carrier is defined
to consist." "*• It seems, however, to be now settled that the car-
riers of live animals incur the responsibility of common carriers as
to such freight; but due regard is had to the nature of the thing
transported. Common carriers of live stock, it is universally rec-
ognized, are not responsible for damages to live stock where the
damage may have arisen from the nature or condition of the animals
themselves, which diligent care could not have prevented. **The
carrier of animals by a mode of conveyance opposed to their habits
and instincts has no such means of securing absolute safety. They
may die of fright, or by refusing to eat; or they may, notwithstand-
ing every precaution, destroy themselves in attempting to break
away, ♦ • • or they may kill each other. • ♦ ♦ Where,
however, the cause of the damage * * * is in connection with
the condition or propensity of animals undertaken to be carried, the
ordinary responsibilities of the carrier should attach." ^®® There is,

»8 Barter v. Wheeler, 49 N. H. 9; Anchor Line v. Dater, 68 111. 3C9; South-
em Exp. Co. V. Hess, 53 Ala. 19; Mosher v. Southern Exp. Co., 38 Ga. 37;
Missouri Pac. Ry. Co. v. Twlss, 35 Neb. 267, 53 N. W. 76. Et vide St. Louis,
I. M. & S. Ry. Co. V. Henderson, 57 Ark. 402, 21 S. W. 878; Johnson v. East
Tennessee, V. & G. Ry. Co., 90 Ga. 810, 17 S. E. 121.

OB American note to Coggs v. Bernard, 1 Smith, Lead. Cas. pt. 1, p. 451. The
English cases which incline to this view wlU be found collected, and together
with some leading American cases considered, in 3 Am. & Eng. Enc. Law, pp.
1-3, etc. Et vide Hutch. Carr. § 221.

100 Chirk V. Rochester & S. R. Co., 14 N. Y. 571, 573; Harris v. Northeni Ind.

LAW OF T0RT8— 68

1074 a)MMON CARRIERS. [Cll. 14

of course, no liability on part of carrier where the damage complain-
ed of was caused by the wrong of the shipper.*®* Where, however,
the carrier's negligence has caused damage, he is responsible. The
carrier is bound to provide safe cars and appliances with reference
to the ordinary character and condition of the animals.*®* It is no
defense that the car alleged to be defective belongs to a connecting
carrier,*®* or to an independent company,*®* or even to the owner
of the stock shipped.*®*^ While the duty of loading and unloading
cattle is commonly determined by contract,*®® circumstances may

R. Co., 20 N. y. 232; Michigan Cent Ry. Co. v. Myrlck. 1 Sup. Ct. 423; Illi-
nois Cent R. Co. v. Sciniggs, G9 Miss. 418, 13 South. 698; Lindsley v. Chicago,
M. & St. P. Ry. Co., 36 Minn. 539, 33 N. W. 7; Evans v. Fitchburg R. Co..
Ill Mass. 142; Hance v. Pacific Exp. Co., 48 Mo. App. 179; Moulton v. St
Paul, M. & M. Ry. Co., 31 Minn. 85, 16 N. \V. 497; McCoy v. Keokuk & D. M.
R. Co., 44 Iowa, 424; MoiTison v. PhiUps, 44 Wis. 405. Et vide cases col-
lected by states, 3 Am. & Eng. Enc. Law, 7, S. As to burden of proof, see
Boehl V. Chicago, M. & St P. Ry. Co., 44 Minn. 191, 46 N. W. 333. Where a
caiTier seeks to escape liability for injury to an animal delivered to it for
transportation on the ground that the injury arose from the viciousness, uu-
ruliness, or restiveness of the animal, it must also be shown that the carrier
was not guilty of negligence. Giblin v. National Steamship Co. (Super. N. Y.)
28 N. Y. Supp. 69.

101 Thus, the burden on a common carrier is rebutted by showing that the
owner left a window open, whereby animal was injured. Huchinson y. Chi-
cago, St P., M. & O. Ry. Co., 37 Minn. 524, 35 N. W. 433.

102 A car furnished by a railroad company for the transportation of horses
and mules, which is liable to be broken from slight kicks by the animals, is
not reasonably safe, and the shipper may recover for injuries to the animals
caused by the car being so broken. Betts v. Chicago, R. I. & P. Ry. Co.
(Iowa) 60 N. W. 623; Selby v. Wilmington & W. R. Co., 113 N. C. 588, 18 S.
B. 88; Railioad Co. v. Pratt, 22 WaU. 123; Pratt v. Ogdensburg & L. C. Ry.
Co., 102 Mass. 557; McDanlel v. Chicago & N. W. Ry. O)., 24 Iowa, 412; Har-
ris V. Northern Ind. R. Co., 20 N. Y. 232. The question of construction and
condition of cars may be for tlie jury. Armstrong v. United States Exp. Co.,
159 Pa. St 640, 28 Atl. 448. Et vide Louisville & N. R. Ck). v. Grant, 99 Ala.
325, 13 South. 599; Searles v. Alabama & V. Ry. Co., 69 Miss. 186, 13 South.
815.

103 Wallingford v. Columbia & G. R. Co., 26 S. C. 258, 2 S. E. 19; McAllister
v. Chicago, R. I. & P. Ry. Co., 74 Mo. 351.

104 Ix)uisvllle & N. R. Co. v. Dies, 91 Tenn. 177, 18 S.W. 266.
10 B Fordyce v. McFlynn, 56 Ark. 424. 19 S. W. 961.

io« Squire v. New York C<-nt R. Co., 98 Mass. 239; Bills v. New York Cent
R. Co., 84 N. Y. 5; Benson v. Gray, 154 Mass. 391, 28 N. E. 275.

Ch, 14] CARRIERS OF LIVE STOCK. 1075-

impose on the carrier the duty of unloading and setting out from
the car exhausted and frightened animals, if this can be reasonably
done.**^ This is an application of the larger duty on the part of the
carrier to take care of stock while in his possession, with due refer-
ence to their propensities, necessities, and surrounding circumstan-
ces.*^*

It may be actionable negligence on the part of the carrier to re-
fuse to allow the owner of cattle to take them out of the cars and
to water them.*®* The general duty as to providing food, water,
and exercise is commonly determined by contract **• or statute.***
The time within which the stock is to be delivered and the respon-
sibility for delay are governed by the ordinary principles determin-
ing liability for delay of common carriers.***

The liability of a carrier for loss of market to his shipper would
seem to have been determined in some cases, as to measure of dam-

107 Ck)upland v. Housatonic B. Co., 61 Ck>nn. 531, 23 Atl. 870; Johnson v.
Alabama & V. Ry. Co., 69 Miss. 191, 11 South. 104; lUlnois Cent. Uy. Co. v.
Peterson, 68 Miss. 454, 10 South. 43.

108 The tendency of animals -to escape: Indianapolis, P. & C. R. Co. v. Al-
len, 31 Ind. 394; Stuart v. Crawley, 2 Starkie, 323; Richardson v. North-
'eastern R. Co., L. R. 7 C. P. 75. As to duty to prevent burning hay or straw
in catUe car, see McB^adden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689;
Powell V. Pennsylvania R. Co., 32 Pa. St 414; Holsapple v. Rome, AV. & O.
R. Co., 8C N. Y. 275.

io» Gulf, C. & S. F. Ry. Co. y. Gann (Tex. Civ. App.) 28 S. W. 349 (contract);
Harris v. Northern Ind. R. Co., 20 N. Y. 232. If the shipper is to feed and
water cattle, delay in transportation of carrier is wrongful if denial of oppor-
tunity to feed is wrongful in view of delay. Smith v. Michigan (3ent. Ry.
Co., 100 Mich. 148, 58 N. W. 657.

110 Cf. Illinois Cent R. Co. v. Adams, 42 111. 474, with South & N. Ala. R.
Co. V. Henlein, 52 Ala. 606. And see Ft. Worth & D. C. Ry. Co. v. Daggett
(Tex. Civ. App.) 27 S. W. 186.

111 Thus, interstate carriers are forbidden to confine animals for more than
28 hours without unloading. Rev. St U. S. §§ 43SG-4388. See Newport News
& M. V. Co. V. United States, 9 C. C. A. 579, 61 Fed. 488; Hale v. Missouri Pac.
R. Co., 36 Neb. 266, 54 N. W. 517. The care of confined horse on a plank floor
after arrival at destination is a question of fact to be determined by a jury.
Moses V. Port Townsend S. R. Co., 5 Wash. 595, 32 Pac. 488.

112 While it has been held that delay will make a carrier liable for shrink-
age of cattle in weight or for their becoming stale (Douglas v. Hannibal <&
St. J. R. Co., 53 Mo. App. 473), the cases are not agreed on the point (Ohio

1076 COMMON CARRIERS. [Ch. 14

ages, rather by the law of contract than of tort.^^" But the trne
measure of damages is the difference between the market value of
the cattle in the condition in which they would have arrived but
for the negligence of defendant and their market value in the condi-
tion in which by reason of such negligence they did arrive.*^*

CABHIEHS OF BAQQAQE.

297. A common carrier is liable as such for baggag^e only
to the extent of ordinary personal effects as distin-
gaished —

(a) From merchandise, and

(b) From property of exceptional value.

The common carrier is liable as such for the personal baggage of
passengers delivered to and received by it solely for transportation,
and not for storage, although, for the convenience of the carrier, the
passenger consents to some delay in transportation.^^* But it is
liable for personal baggage only, and is not bound to ask if the bag-

& M. R. Co. V. Dunbar, 20 lU. 624). Et vide Frazer v. Kansas City, SL J. &
C, B. R. Co., 4S Iowa, 571. As to what is reasonable time, see Illinois Cent
R. Co. V. Haynes, 04 Miss. G04, 1 South. 7G5; Alabama & V. Ry. Co. v. Sparks,
71 Miss, 757, 16 So. 263; International & G. N. R. Co. v. Wentworth (Tex.
Civ. App.) 28 S. W. 277; Atchison, T. & S. F. R. Co. v. Bryan (Tex. Civ. App.)
28 S. W. 98; Louisville, N. A. & C. R. Co. v. Brinley (Ky.) 29 S. AV. 305.

113 Philadelphia, W. & B. Co. v. Lehman, 56 Md. 209; Home v. Midland R.
Co., L. R. 8 C. P. 131; Leonard v. Fitchbmg R. R., 143 Mass. 307, 9 N. E. 667.

11* New York, L. E. & W. R. Co. v. BJstiU, 147 U. S. 591-617, 13 Sup. Ct 444,
citing Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 556; Smith v.
Griffith, 3 HiU (X. Y.) 333; Sturges v. Bissell, 40 N. Y. 462; Cutting v. Grand
Trunk Ry. Co., 13 AUen (Mass.) 381; Gulf, C. & S. F. Ry. Co. v. WUm (Tex.
Civ. App.) 28 S. W. 925; M'Cune v. Railway Co., 52 Iowa, 600, 3 N. W. 6Io;
Missouri Pac. Ry. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749; Missouri Pac. Ry.
Co. V. Edwards, 78 Tex. 307, 14 S. W. 607; Gulf, C. & S. F. Ry. Co. v. Sim-
mons (Tex. Civ. App.) 28 S. W. 825; Hutch. Carr. (2d Ed.) §§ 221, 770a; Hud-
son V. Northern Pac. R. Co. (Iowa) 60 N. W. 008.

115 Shaw V. Northern Pac. R. Co., 40 Minn. 144, 41 N. W. 548. Where a
common carrier claims exemption from liability for loss of a passenger's bag-
gage on the ground that it resulted from the act of God, the burden Is on it
to show that the loss was caused by such act Toledo, St. L. & K. C. R. Co.
V. Tapp, 6 Ind. App. 304, 33 N. E. 462. Where a passenger purchased a

Ch. 14] CARRIERS OF BAGGAGK. 1077

gage is anything else. Hence, if a valise contain merchandise, and
not articles of "necessity and convenience intended and designed for
personal use, instruction, amusement, and protection," and the com-
pany have no notice thereof, the owner cannot recover for the loss
without proof of gross negligence.*^® In Humphreys v. Perry **^ a
traveling salesman for a jewelry firm paid a charge for overweight
on a trunk of the kind which, from the practice of sending out
agents with trunks filled with jewelry, had come to be known as a
"jeweler's trunk," which trunk contained jewelry and personal bag-
gage. He was held not entitled to recover for the loss of the con-
tents of the trunk. The carrier had no knowledge of its contents,
actual or constructive, and was not bound to inquire with reference
thereto. It would seem that a common carrier is not responsible
for money included in the baggage of a passenger beyond the amount
which a prudent person would deem proper and necessary for travel-
ing expenses and personal use, or intend^ for other perao-ns, unless
the loss was the result of the carrier's gross negligence.*** On ar-
rival at destination, the carrier becomes a bailee for hire, and is

ticket for a certain train, and had his trunk checked 20 minutes before train
time, it was the duty of the railroad company to carry the trunk on the same
train with its owner, and a failure tp do so was negrligence. Id.

lie Stimpson v. Connecticut River R. Co., 98 Mass. 83; Collins v. Boston &
M. R. Co., 10 Cush. (Mass.) 506; Haines v. Chicago, St. P., M. & O. R. Co.,
29 Minn. 160, 12 N. W. 447; Oakes v. Northern Pac. Ry. Co., 20 Or. 302. 20
Pac. 230. As to dogs, see Kansas City, M. & B. R. Co. v. Higdon, 04 Ala.
286, 10 South. 282. Jewelry is part of ladies' luggage, McGill v. Rowand,
3 Pa. St 451; so a watch in a trunk, Jones v. Voorhees, 10 Ohio, 145; a pis-
tol. Davis V. Michigan, S. & N. I. R. Co., 22 111. 281. Contra, Giles v. Faun-
teroy, 13 Md. 126. And, as to action by employer of drummer for loss of
sample trunk, see Ft. Worth & R. G. Ry. Co. v. I. B. Rosenthal Millinery Co.
(Tex. Civ. App.) 29 S. W. 196.

iiT 148 U. S. 627. 13 Sup. Ct. 711; Southern Kansas Ry. Co. v. Clark, 52
Kan. 398, 34 Pac. 1054; Parmelee v. McNulty, 19 111. 556; Davis v. Michi-
gan, S. & N. I. R. Co., 22 in. 281. As to bond required before shipment of
jewelry cases, see Weber Co. v. Chicago, St. P., M. & O. Ry. Co. (loAva) <jO
N. W. 637.

118 Jordan v. Fall River R. Co., 5 Cush. (Mass.) 69; Johnson v. Stone, 11
Humph. (Tenn.) 420; lUinois Cent R. Co. v. Copeland, 24 m. 336; Weed v.
Saratoga & S. Ry. Co., 19 Wend. (N. Y.) 534; Camden & A. R. Co. v. Baldauf,
16 Pa. St. 68, 79; Doyle v. Kiser, 6 Ind. 247.

1078 COMMON CARRIERS. [Oh. 14

liable for want of reasonable care of baggage; *^" and if it fail to
provide reasonable facilities for the remroval of baggage, in conse-
quence of which the baggage is damaged or burned, the jury may
find the carrier liable for negligence.*** The baggage check is in the
nature of a receipt, and is evidence of delivery, ovmership, and iden-
tity of baggage in good order.^** On its surrender, the liability of
the carrier as such ceases.***

GAHBIEHS OF PASSENGEB8— UABIIiITIES.

298. A carrier of paJSHsengers is not an insurer; but proof
of damage to a passenger by the carrier raises a
presumption of actionable negligence on the part
of the carrier, which may be rebutted —

(a) By bringing the case within exceptions similar to

those recognized by law as to liability of common
carriers of freight, or

(b) By showing the absence of negligence on carrier's

part.

Who are Passengei'8.^^

Whei'e a consideration is paid, the permission to ride is not nec-
essarily a ticket; ^^* a special contract is sufficient.^** If a railroad

110 Kalin V. Atlantic & N. C. R. Co. (N. C.) 20 S. E. 169; Nealand v. Bos-
ton & M. R. R., IGl Pa. St. 67, 36 N. E. 592. A short note on the liabiUty of
sleeping-car companies for loss of passenger's baggage, 58 Am. & Eng. Ry.
Cas. 584.

120 Geo. F. Dittman Boot & Shoe Co. v. Keokuk & N. W. Ry. Co. (Iowa)
59 N. W. 257.

121 St. Louis, A. & T. II. Ry. Co. v. Hawkins, 39 111. App. 406. Union De-
pot Company is agent of connecting roads for baggage checking. See Ahl-
beck V. St. Paul, M. & M. Ry. C^., 39 Minn. 424, 40 N. W. 3(M; Hyman v.
Central Yt. R. Co., 60 Hun, 202, 21 N. Y. Supp. 119.

122 Mortland v. Philadelphia & R. Ry. Co., 81 Hun, 473, 30 N. Y. Supp. 1021.

123 A collection of recent decisions as to who are passengers, 58 Am. &
Eng. Ry. Cas. 12, 18.

124 See an article on the rights of a passenger traveling on a railway with-
out a ticket, 98 Law T. 515. 538.

120 Applied to circus employes, Robertson v. Old Colony R. Co., 156 Mass.
525, 31 N. B. 650.

Ch. 14] CARRIEB8 OF PASSENGERS. 1079

company, as part consideration of a deed, agreed to carry grantor
and family, but issue no pass, one of the children ejected can re-
cover damages."' Where, however, a ticket is purchased, it is the
contract; and its terms, within the limits allowed by law as to lim-
itations on liability ^^^ for negligence, so far as they extend, deter-
mine the rights of the parties."* There is no distinction between

is« Grimes v. Minneapolis, L. & M. Ry. Co., 37 Minn. 66, 33 N. W. 33.

127 Ante, p. 298. Et vide Doyle v. Fitchburg R. Co., 162 Mass. 66, 37 N.
E. 770; Meuer v. Chicago, M. & St P. Ry. Co. (S. D.) 59 N. W. 945; Potter
V. The Majestic, 9 C. C. A. 161, 60 Fed. 624; 0*Regan v. Cunard S. S. Co.,
160 Mass. 356, 35 N. E. 1070. As to excursion tickets, see Bowcts v. Pitts-
burgh, Ft W. & C. R. R., 158 Pa. St 302, 27 Atl. 893; Pittsburgh, C, O.
& St L. R. Co. V. Russ, 6 C. C. A. 597, 57 Fed. 822; RandaU v. New Orleans
& N. E. R. Co., 45 La. Ann. 778, 13 South. 166; Central Railroad & Bank-
ing Co. V. Roberts, 91 Ga. 513, 18 S. E. 315; Pennsylvania R. Co. v. Parry,
55 N. J. Law, 402, 27 Atl. 914. A few citations on the effect of conditions
in raih*oad tic&t, 58 Am. & Eng. R. Cas. 60, 64, 68.

138 Lechowitsser v. Hamburg American Packet Co., 8 Misc. Rep. 213, 28
N. Y. Supp. 577. Hence, if mileage book prohibit riding on freight, no sub-
sequent advertisement allowing such privilege will prevent proper ejectment.
Dunlap V. Northern Pac. Ry. Co., 35 Minn. 203, 28 N. W. 240. Cf. Boggess
V. Chesapeake & O. Ry. Co., 37 W. Va. 297, 16 S, E. 525. Signing, stamping,
and identification of holder of return coupon are legal and proper conditions
if no deception is used in sale. Abram v. Gulf, C. & S. F. Ry. Co. 83 Tex.
61, 18 S, W. 321; Wyraan v. Northern Pac. Ry. Co., 34 Minn. 210, 25 N. A?.
349; Gulf, C. & S. F. Ry. Co. v. Henry, 84 Tex. 678, 19 S. W. 870. And
yet the general doctrine is that the company is liable for mistake of conductor
or ticket agent New York, L. E. & W. R. Co. v. Winters Adm'r, 143 U. S.
60, 12 Sup. Ct. 356; Kansas City, B. & M. R. Co. v. Riley, OS Miss. 765,
9 South. 443. A purchaser of a second-class ticket is bound by its terms,
whether he has read them or not; and, if trains do not connect, a railroad
company is not bound to transport on the next train,— a limited express.
New York, L. E. & W. Ry. Co. v. Bennett. 6 U. S. App. 95, 1 C. C. A. 544.
and 50 Fed. 496. Et vide Humphri^ v. Illinois Cent R. Co., 70 Miss. 453,

12 South. 155. But ordinary ticket does not entitle to seat in chair car.
St Louis, A. & T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711. Transfer
check is good only for lines punched. Pine v. St Paul City Ry. Co., 50 Minn.
144, 52 N. W. 392; Louisville, N. O. & T. Ry. Co. v. Patterson, 69 Miss. 421,

13 South. 697. As to tickets issued by connecting lines, see Rouser v. North
Park St. Ry. Co., 97 Mich. 565, 56 N, W. 937; Humphries v. lUinois Cent.
R. Co., 70 Miss. 453, 12 South. 155; Nichols v. Southern Pac. Co., 23 Or.
123, 31 Pac. 296; Matthews v. Charleston & S. Ry. Co., 38 S. C. 429. 17 S. E.
225; Gulf, C. & S. F. Ry. Co. v. Looney, 85 Tex. 158, 19 S. W. 1039. A

1080 COMMON CARRIERS. [Ch. 14

passengers of various classes on passenger trains so far as protec-
tion against personal injury is concerned, whatever the difference
as to rights to seats may be.**' Shippers accompanying live stock,"^
postal clerks,*** express messengers,**' porters on palace cars,***
have the rights of passengers.***

review of recent decisions as to interchangeable mileage tickets, 9 Am. R. &
Corp. R. 592.

120 Whart. Neg. § G41, citing Indianapolis & St L. R. Co. v. Horst, ^ U. S.
291; Indianapolis, B. & W. Ry. Co. v. Beaver, 41 Ind. 498. But see criti-
dsm in Flint & P. M. Ry. Co. v. Weir a877) 37 Micii. 111. U a uassenger
is permitted at his own request to travel on a freight train, he assumes only
the naturally additional risks, not including condition of track. Ohio Vai.
Ry. Co. V. Watson's Adm'r, 93 Ky. 654. 21 S. W. 244. The ticket entitles to
a seat, and, if one is on a train which moves before inability to get a seat is
known, one is not a trespasser, and can be put out only at a regular station,
if he refuses to surrender ticket Hardenbergh v. St Paul, M. & M. Ry. Co.,
39 Minn. 3, 38 N. W. 625. From a passenger who rides in la, chair car the
railway company may demand extra compensation, where the train is sup-
plied with cars furnished with the usual appliances for the accommodation of
passengers entitled to first-class passage. St Louis, A. & T. Ry. Co. v
Hardy, 55 Ark. 134, 17 S. W. 711. A coUection of authorities as to discrim
ination in transporting white and colored passengers, 5S Am. & Bug. R. Cas
557.

180 New Orleans & N. E. R. Co. v. Thomas, 9 C. C. A. 29, 60 Fed. 379
Receivers of International & G. N. Ry. Co. v. Armstrong, 4 Tex. Civ. App
146, 23 S. W. 236; Richmond & D. R. Co. v. Bumsed, 70 Miss. 437, 12 South.
958. Cf. Meuer v. Chicago, M. & St P. Ry. Co. (S. D.) 59 N. W. 945
Orcutt V. Northern Pac. R. Co., 45 Minn. 368, 47 N. W. 1008; Olson v. St
Paul & D. R. Co., 45 Minn. 536, 48 N. W. 445; Pitcher v. Lake Shore & M
S. R. Co., 61 Him, 623, 16 N. Y. Supp. 62; Miller v. Cornwall R. R., 154 Pa
St 473, 26 Atl. 779; Chicago, B. & Q. R. Co. v. Dickson, 143 HI. 368, 32 N. B
380 (42 111. App. 363, affiiTued); Gulf, C. & S. F. Ry. Co. v. Cole (Tex. Civ
App.) 28 S. W. 391.

isiMellor v. Missouri Pac. Ry. Co, (Jio. Sup.) 14 S. W. 758; Id., 105 Mo.
455, 16 S. W. 849; Anowsmith v. Nashville & D. R. Co., 57 Fed. 165; Gulf,
C. & S. F. Ry. Co. V. Meson, 79 Tex. 371, 15 S- W. 280; Cleveland, C, C. &
St L. Ry. Co. V. Ketcham. 133 Ind. 346, 33 N. E. 116.

132 San Antonio & A. P. Ry. Co. v. Adams, 6 Tex. CUv. App. 102, 24 S. W.
839; Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597; Florida South. Ry.
Co. V. Hirst, 30 Fla. 1, 11 South. 506. Et vide Blair v. Erie Ry. Co., 66 N.
Y. 313; Hammond v. North Eastern Ry. Co., 6 Rich. (S. C.) 130.

1 33 Jones V. St Louis S. W. Ry. Co. (Mo. Sup.) 28 S. W. 883.

134 A laborer entitled to ride is not a trespasser. Gradin v. St Paul & D.

Cb. 14] CARRIERS OF PASSENGERS. 1081

Where, however, no coiisideration is paid, although the passen-
ger may be actually aboard the train by the invitation or acquies-
cence of the cairier's employes, the carrier does not owe him the
duties owed to a passenger for the violation of which an action in
tort as for negligence will lie.^** A passenger about to board a car,
and partially on it, is a passenger who can recover damages for the
negligence of the carrier;*** but a person attempting to board a
moving car, signaled by him to stop, may be entitled to only such

R. Co., 30 Minn. 217, 14 N. W. 881. Cf. IMcA^eety v. St. Paul, M. & M. Ry. Co.,
45 Minn. 268, 47 N. W. 809. Plaintiff gjot on wronj? train, and foUowed con-
ductor's directions in retracing steps. He fell into cattle guards, was in-
jured, but could not recover because a trespasser. Finnegan v. Chicago, St
P., M. & O. Ry. Co., 48 Minn. 378, 51 N. W. 122. Compare Jones v. Clilcago.
M. & St. P. Ry. Co., 42 Minn. 183, 43 N. W. 1114. Generally, as to rights of
passengers, see HaU v. Memphis & C. R. Co., 15 Fed. 09, note by S. D.
Thompson.

i»5 Woolsey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444; Gai-dner
V. Waycross Air-Line R. Co. (Ga.) 19 S. B. 557; Texas & P. Ry. Co. v.
Black, 87 Tex. 100, 27 S. W. 118; AVynn v. City & Suburban Ry. Co., 91 Ga.
344, 17 S. B, 649; EvansviUe & R. R. Co. v. Barnes, 136 Ind. 306, 36 N. E.
1092; Atlanta & F. R. Co. v. Fuller, 92 Ga. 482, 17 S. E. 643, 644; Everett
V. Oregon S. L. & U. N. Ry. Co.. 9 Utah, 340, 34 Pac. 289. Compare Doyle
V. Fitchburg R. Co., 162 Mass. 66, 37 N. B. 770; Galveston, H. & S. A. R.
Co. V. Snead, 4 Tex. Civ. App. 31, 23 S. W. 277; Farber v. Missouri Pac. Ry.
Co., 116 a!o. 81, 22 S. W. 631; Atchison, T. & S. F. R. Co. v. Headland, 18
Colo. 477, 33 Pac. 185. But see Bryant v. Chicago, St P., M. & O. Ry. Co.,
4 C. C. A. 146, 53 Fed. 997. As to riding on a freight train, see Texas & P.
Ry. Co. V. Black, 87 Tex. 60, 27 S. W. 118; lUlnois Cent. Ry. Co. v. Axley.
47 111. App. 307; Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860.
But see Smith v. LoulsvUle, E. & St. L. R. Co., 124 Ind. 394, 24 N. E. 753.
A newsboy not a passenger on an elevator. See Springer v. Byram, 137 Ind.
15, 36 N. E. 361.

186 As where such damage Is caused from pushing from behind. Smith v.
St Paul City Ry. Co., 32 Minn. 1, 18 N. W. 827. Similarly, if car start sud-
denly and throw him. Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, 51 N.
W. 111. And See Cdtien v. West Chicago St Ry. Co., 9 C. C. A. 223, 60 Fed.
698; Louisville & N. R. Co. v. Popp (Ky.) 27 S. W. 992; Walters v. Phila-
delphia Traction Co., 161 Pa. St. 36, 28 Atl. 941; Pennsylvania R. Co. v.
Reed, 9 C. C. A. 219, 60 Fed. 694; Yamell v. Kansas City, Ft S. & M. Ry.
Co., 113 Mo. 570, 21 S. W. 1; Mellqulst v. The Wasco, 53 Fed. 546; Cogs-
weU V. West St. & N. E. El. Ry. Co., 5 Wash. 46, 31 Pac. 411. I*roxlmlty of
telegraph pole, North Chicago St Ry. v. WUllams, 140 lU. 275, 29 N. E. 672.

1082 COMMON CARKIRRS. £Ch. 14

care on the part of the trainmen as is dae to any person in the
street**' Persons escorting passengers*** or persons bringing meals
on cars **• are not entitled to the performance of duties due to pas-
sengers, but may recover for damage caused by negligence under
circumstances, especially where there is willful and wanton wrong.
But mere trespassers, as a boy attempting to board a car **^ without
notice to employes, or a person stealing a ride on a freight train,***
are not passengers, and the carrier owes none of the peculiar duties
of a common carrier to such persons. And an employ^, knowing
the risks of travel, assumes them, and cannot recover because of
damage produced by the danger which he knew or ought to have
known.*** In the absence of any contrary agreement, a person who
travels on a pass is entitled to the same protection as to life or limb
as a passenger; but the authorities would seem to be in* hopeless
confusion as to the effect of a contract limiting or removing the lia-
bility of the carrier. While, perhaps, the general rule has been
said to be that no agreement that a free passenger shall take the
risk of all injury can exonerate the carrier for negligence,*** the

i>T BalUmore Traction Co. v. State, 78 Md. 409. 28 Atl. 397. Cf. JoUet St.
Ry. Co. v. Duggan, 45 lU. App. 450. Even a ticket liolder crossing tracks
outside of station, apparently to catch a starting train, wlio is killed by an-
other train, is not a passenger. VTebster v. Pltchburg R, Co., 161 Maas. 298.
37 N. E. 1G5. A review of decisions on the question as to the time when a
person who has started to take passage on a train becomes a passenger,
24 Lawy. Rep. Ann. 521.

188 Houston V. Gate City St. R. Co., 89 Ga. 272, 15 S. B. 323; GUlls v. Rail-
road Co., 59 Pa. St. 143; Lawton v. Little Rock & Ft. S. Ry. Co., 55 Ark,
428, 18 S. W. 543. Et vide Doss v. Missouri, K. & T. R. Co., 59 Mo. 27;
Dowd V. Chicago, M. & St. P. Ry. Co., 84 Wis. 105, 54 N. W. 24; Yamell
V. Kansas City, Ft. S. & M. R. Co., 113 Mo. 570, 21 S. W. 1; Gaiitret v.
Egerton, L. R. 2 C. P. 371; Holmes v. North Eastern R. R., L. R. 4 Exch.
254; Watklns v. Great AVostern R. Co., 37 Law T. (N. S.) 103; Missouri, K.
& T. Ry. Co. V. MiUer (Tex. Civ. App.) 27 S. W. 905.

180 But if a conductor threatens to knock off from a train in motion a waiter
who brought him his dinner, and the waiter jumps and is injured, the com-
pany is liable. Savannah, F. & W. Ry. Co. v. Watson, 89 Ga. 110, 14 S. E.
890.

140 Pitcher v. People's St. Ry., 154 Pa. St. 500, 20 Atl. 559.

1*1 Planz V. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 350.

142 Whart. Neg. ff 200-202, 005, (MO.

ii» Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 4(58; Railroad Go.

Ch. 14] CARRIERS OF PASSENGERB. 108-*

latest opinion holds that one who accepts and uses a free pass as
a pore gratnitj on condition that he will assume all risk of personal
injury must be deemed to have accepted and to be bound by it,
whether he reads it or not.***

Degree of Give and Burden of Proof.

A carrier of passengers is not an insurer.**' Kot only does the in-
telligence and volition of the person carried create a difference in
the degree of care which it is proper to demand of the carrier, corre-
sponding to the allowance for the inherent vice or disease of live
stock, but the courts also recognize that one result of making car-
riers of passengers insurers would have been either the refusal of
the carrier to undertake passenger traflSc or their refusal of it except
upon special contract affecting any individual case.**^ A carrier is
not necessarily guilty of negligence, although it may have been pos-
sible to have prevented the damage; **^ but he is bound to exercise,
at least, such diligence as a good specialist in such business is ac-
customed to use, and this must rise in proportion to the risk.**® In-

v. Lockwood, 17 WaU. 357; RaUway Co. v. Stephens, 95 U. S. 695; Jacobus
T. St. Paul & C. R. Co., 20 Minn. 125 (GIL 110). Et vide cases collected
Whart. Neg. SS 355, 641, and 641a.

1** Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1^X59; 12 N. Y.
Law J. 80, reviewing authorities at length; Muldoon v. Seattle City Ry. Co.
<AVash.) 38 Pac. 995. A collection of conflicting authorities on the right of a
common carrier to exempt himself by contract from the conse<iuences of his
own negligence in the case of strictly free passengers, by Albert B. Davidson,
3 N. W. Law Rev. 191.

14B White V. Boulton, Peake, 113 (this U the first case on the subject);
Hubbard, J., in Ingalls v. Bills, 9 Mete. (Mass.) 1. Et vide Crofts v. Water-
house, 11 Moore, 133; Bennett v. Button, 10 N. H. 481; Readhoad v. Mid-
land Ry. Co., L. R. 2 Q. B. 412, U R. 4 Q. B. 379.

149 Schouler, Ballm. § 652. A note, with numerous citations, as to the de-
gree of care required towards passengers, 58 Am. & Eng. R. Cas. 73, 90, 110,
133, 194.

14T Gilbert v. West End St. Ry. Co., 100 Mass. 403, 30 N. E. 00. But see
Jackson v. Tollett, 2 Starkle, 37; May hew v. Boyce, 1 Starkle, 423; Card
T. New York & H. R. Co., 50 Barb. (N. Y.) 39; Crofts v. Waterhouse, 3 Blng.

319.

148 Whart. Neg. f§ 027-637. This standard is, however, severely criticised.
Carrico v. West Virginia Cent. & P. Ry. Co., 35 W. Va. 389, 14 S. E. 12;
Hutch. Carr. p. 403, note 1.

1084 COMMON CARKIERS. [Ch. 14

deed, the cases generally recognize that the carrier mast exercise the
utmost care under the circumstances, short of a warranty of the
safety of the passenger.^**

An injury to a passenger while on a carrier's vehicle is prima facie
negligence, whether caused by defects of appliances, errors in opera-
tion, or by conduct of servants, according to the general,*'* but not

1*8 IndianapoUs & St L. R. CJo. v. Horst, d3 U. S. 291; Chicago & A. R. Co.
V. Byram, 153 IlL 131, 38 N. B. 578; Chicago P. & St L. Ry. Co. y. liewis. 145^
lU. 67, 33 N. E. 900; Spellman v. Lincoln Rapid Transit Co., 3G Neb. 890^
55 N. W. 270; Gulf, C. & S. F. Ry. Co. v. Higby (Tex. Civ. App.) 26 S. W.
737; Douglas v. Sioux City St. Ry. Co. (Iowa) 58 N. W. 1070; Bischoff v.
People's Ry. Co. (Mo. Sup.) 25 S. W. 908; Wilson v. Northern Pac. Ry. CJo.,.
26 Minn. 278» 3 N. W. 333; International & G. N. R. Co. v. Welch, 86 Tex.
203, 24 S. W. 391; Taylor v. Pennsylvania Co., 50 Fed. 755; Jadcson v. Grand
Ave. Ry. Ck)., 118 Mo. 199, 2t S. W. 192; Gulf, C. & S. F* Ry. Co. v. Stricklin
(Tex. Civ. App.) 27 S. W. 1093; Christie v. Griggs, 2 Camp. 79; Dunn v.
Grand Tninlt Ry. Co., 58 Me. 187; The New World v. King, 16 How. 460;
Hutch. Carr. f 500 et seq. As to operation of horse-ear lines. Noble v. St
Joseph & B. H. St Ry. Co., 98 Mich. 249, 67 N. W. 126; AVatson v. St Paul
City St. Ry. Co., 42 Minn. 46, 43 N. W. 904. An instruction that a carrier
of passengers is bound to run and operate its cars **with the highest degree
of care of a very prudent person, in view of all the facts and circumstances
at the time of the alleged injury," does not require too high a degree of care.
O'ConneU v. St. Louis Cable & W. Ry. CJo., 106 Mo. 482, 17 S. W. 494. And,,
generally, as to requirement of highest measure of care in conduct of business
by common carriers, see WiUock v. Railroad Co., 106 Pa. St. 184, 30 Atl.
948; Greenh. Pub. Pol. 513. Cable lines, Watson v. St. Paul City Ry. Co.
42 Minn. 46, 43 N. W. 904. Electric lines, Denver Tramway Co. v. Reid, 4
CJolo. App. 53, 35 Pac. 269. To prevent elccti'ic shock from defective insula-
tion, Burt V. Douglas Co. St. Ry. Co., 83 Wis. 229, 53 N. W. 447. Elevators,
MitcheU v. Marker, 10 C. C. A. 306, 62 Fed. 139. A ferry. McLean v. Bur-
bank, 11 Minn. 277 (GiL 189), 12 Minn. 530 (Gil. 438).

ICO Stokes V. Saltonstall, 13 Pet 181; 58 Am. & Eng. R. Cas. 294, collecting
cases. New Jersey R. Co. v. Pollard, 22 Wall. 341; Kentucky & I. Bridge
Co. V. Quinkert, 2 Ind. App. 244, 28 N. E. 338; Chicago, B. & Q. Ry. Co. v.
Landauer, 39 Neb. 803, 58 N. W. 434; St Louis & S. F. Ry. Co. v. Mitchell^
57 Ark. 418, 21 S. W. 883; Union Pac. Ry. Co. v. Porter, 38 Neb 226, 56 N. W.
»JS (inuier statute); Bush v. Barnett 96 Cal. 202, 31 Pac. 2; Spellman v.
Lincoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270; Skinner v. London,
B. & S. C. Ry. Co., 5 Exch. 787; Sullivan v. Philadelphia & R. R. CJo., 30 Pa.
St. 234; New Orleans, J. & G. N. R. Co. v. AUbritton, 38 Miss. 242. Cf. Carpue
v. London & B. Ry. Co., 5 Q. B. 747; Comman v. Eastern Counties Ry. Co.,
4 Hurl. & N. 781. As to statutorj^ provisions, Omaha & R. V. Ry. Co. v.

<Dh. 14] CARRIERS OF PASSKNGEKS. 1085

universal,*'^^ opinion. Thns, the presumption of negligence arises
from damage produced by a collision,"* or derailment,"^ or an acci-
-dent caused by a train coming in contact with a land slide."* If,

Cholette, 41 Neb. 578, 59 N. W. 921; VaU v. Broadway R. Co., 6 Misc. Rep.
20, 26 N. Y. Supp. 59. But see Horstiue v. Lehigh Val. R. Co., 151 Pa. St.
244, 2o Ail. 104. To leave a switch out of place is per se nej^ligence. State
T. O'Brien, 32 N. J. Law, 1C9; Reg. v. Pargeter, 3 Cox, Or. Cas. 191.

iBi Railroad Co. v. Mitchell, 11 Heisk. (Tenu.) 400; Texas & P. Ry. Co. v.
Buckelew, 3 Tex. Civ. App. 272, 22 S. W. 994; Georgia R. Co. v. Anderson,

33 Ga. 110; Mitchell v. Western & A. R. Co., 30 Ga. 22; lUinols Cent. R. Co.
V. Ci-agin, 71 HI. 177; Deyo v. New York Cent R. Co., 34 N. Y. 9; Holbrook
v. Utica & S. R. Co., 12 N. Y. 230; Curtis v. Rochester & S. R. Co., 18 N. Y.
534. That plaintiil (passenger) must show freedom from contiibutory negli-
gence, see Chamberlain v. Milwaukee & M. R. Co., 11 Wis. 238; Bonce v.
Dubuque St Ry. Co., 53 Iowa, 278, 5 N. W. 177; Aurora R. Co. v. Grimes, 13
111. 585.

i»2 West Chicago St. Ry. Co. v. Martin. 47 III. App. GIO; Kansas City, F.
«. & M. R, Co. V. Stoner, 1 C. C. A. 231, 49 Fed. 209; North Baltimore Pass.
Ry. Co. V. Kas Kell, 78 Md. 517. 28 AtL 410; Little Rock & M. R. Co. v. Kar-
tell, 58 Ark. 454, 25 S. W. 117; Fordyce v. Jackson, 50 Ark. 594, 20 S. W, 528.
597; Louisville & N. R. Co. v. liOng, 94 Ky. 410, 22 S. W. 747. Collisions of
vessels. The Woodrop Sims, 2 Dod. 83, and cases coUected in great number
in note 2, § 577. Wood's Browne, Car. p. 582. From the bursting of a boiler,
Robinson v. New York Cent & H. R. R. Co., 20 Blatchf. 338. 9 Fed. 877;
Rose V. Stephens & C. Transp. Co., 20 Blatchf. 411, 11 Fed. 438; Illinois Cent.
Ry. Co. V. PhiUips, 49 111. 234. 55 111. 194; Caldwell v. New Jersey Steamboat
Co., 56 Barb. (N. Y.) 425; or of a lamp, Wilkie v. Bolster, 3 E. D. Smith
<N. Y.) 327.

188 Mexican Cent Ry. Co. v. I^uricella, 87 Tex. 277, 28 S. W. 277; Spell-
man V. liineoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270. And see George
T. St. Louis, I. M. & S. Ry. Co., 34 Ark. 613; Pittsburgh, C. & St L. R. Co.
V. WiUiams, 74 Ind. 462. Hoi-ses, Christie v. Griggs, 2 Camp. 79; Budd v.
United Carriage Co., 25 Or. 314, 35 Pac. 660; Gardner v. Detroit St. Ry. Co.,
•99 Mich. 182, 58 N. W. 49; Israel v. Clark, 4 Esp. 259; cable-car company.
€low v. Pittsburgh Traction Co.. 158 Pa. St 410, 27 Atl. 1004; ovei-tunilng
of a car, Denver, S. P. & P. Ry. v. Woodward, 4 Colo. 1; or of a stage, Boycc
T. CaUfornia Stage Co., 25 Cal. 460; Payne v. Halstead, 44 111. App. 97;
Lemony. Chanslor, 68 Mo. 340; Ware v. Gay, 11 Pick, (Mass.) 106.

IB* Gleeson v. Virginia M. R. Co., 140 U. S. 435, 11 Sup. Ct. 859, oven-uling
5 Mackey, 356. So, washing away an embankment, Philadelphia & R. R. Co.
V. Anderson, 94 Pa. St 351; or of a road, Brehm v. Great Western R. Co.,

34 Barb. (N. Y.) 256; giving way of bridge, Kansas Pac. Ry. Co. v. Miller, 2
Colo. 442. Generally, an obstruction on a track. Sullivan v. Philadelphia <&
R. R. Co., 30 Pa. St 34.

108G COMMON CARRIERS. [Ch. 14

however, the injury was not in some way connected with the appli-
ances and operation of the carrier, but was occasioned, for example,
by the act of God, the injured person cannot recover. Therefore^
where the accident was caused by the fall of a rock from a point
more than 300 feet from the top of the cut of a railroad track, there
was no presumption of negligence.^"" A fortiori, one cannot recover
when he himself has been negligent, and his negligence is shown to*
have been the proximate cause of the wrong.*"*

Rules (ind Regulations,

A person may become a passenger before the transportation has-
actually commenced.*"^ The duty of the carrier commences with
the approach, and ends with the departure, of the passenger. The
proposed passenger is bound to obey the reasonable rules of the com-
pany,*"* including the rules requiring the purchase of a ticket as
evidence of right of passage.*"* Therefore, he may, under the com-
pany rules, be refused admittance to the trainway, unless he show»

155 Fleming v. Pittsburgh, C, O. & St. L. Ry. Co., 158 Pa. St 130, 27 AtL
858. And see Andi'ews v. Chicago, M. & St. P. Ry. Co., 80 Iowa, 677. 53 N,
W. 399; Gleeson v. Virginia M. R. Co., 140 U. S. 435, 11 Sup. Ct. 859.

i5« Chicago, B. & L. R. Co. v. Landauer, 30 Neb. 803, 58 N. W. 434; IUinoi»
Cent. R. Co. v. Davidson, 12 C. C. A. 118, 64 Fed. 301. A coUectlon of authori-
ties on contributory negligence by passengers, 58 Am. & Kng. R. Cas. 326^
336, 358, 375, 393, 410.

167 Rogers V. Kennebec Steamboat Co., 86 Me. 261. 29 Atl. 1069; Norfolk &,
W. R. Co. V. Galliher. 89 Va. 639, 16 S. E. 935. But a person, In possession
of a ticket, who, while running from the street, across the company's tracks,
outside the passenger station, apparently to catch a train about to start. Is
struck and killed by another train, has not become a passenger. Webster v.
Fltchburg R. Co., 161 Mass. 298. 37 N. E. 165.

188 Central Railroad & Banking Co. v. Strickland, 90 Ga. 562, 16 S. B. 352;
Bancroft v. Boston & W. R. Co., 97 Mass. 275; Gonzales v. New York & H.
R. Co., 38 N. Y. 440; Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318. As to^
stopping of street cars, Jackson v. Grand Ave. Ry. Co., 118 Mo. 190. 24
S. W. 192. But passengers may ride on platforms notwithstanding contraiy
Tule if the car Is crowded and there is not sufficient room for passengers in-
side, and the care to be exercised by the carrier has reference to this prin-
ciple. Matz V. St. Paul City Ry. Co., 52 Minn. 159, 53 N. AV. 1071; Morria
V. Eighth Ave. R. Co., 68 Hun, 39, 22 N. Y. Supp. 666; Holland v. West End
St Ry. Co., 155 Mass. 387, 29 N. E. 622; Highland Ave. & B. R. Co. v. Dono-
van, 94 Ala. 299, 10 South. 139.

153 Van Dusan v. Grand Trunk Ry. Co., 97 Mich. 439, 56 N. W. 848; Pouilla

Ch. 14] CARKIERS OF PASSENGERS. 10S7

ticket; and, if he passes through without doing so, the gateuian
may return him, using no unnecessary force.^**^ It is the duty of the
intending passenger to inform himself as to regulations of the car-
rier, as to when, where, and how he can stop; and he boards the
wrong train at his peril.^** However, where a rule to go to the
right required passengers, in leaving the cars, to go down steps, and
cross what had become a stream of water, and then go under a bridge
on an ungraded street, and the railroad company knew of the habit
of passengers in disregarding such rule or notice, and crossing the
tracks, as did the plaintiff, whereby he was killed, it was held that
there was no obligation on the part of the plaintiff to cross the track
by the underground public street, and that he was not guilty of
negligence in law in turning to the left on leaving the car.*** Nor
need a passenger take notice of a rule of a railroad company which
contravenes a statute.***

Before Entrance to Car.

The carrier is bound to exercise care in keeping approaches to his
stations or wharf in a safe and suitable condition for passengers or
licensees.*** If, when one is about to purchase a ticket, he contracts
a contagious disease from the ticket seller, knowledge of the fact of

y. Canadian Pac. Ry. Co., 3 C. C. A. 23, 52 Fed. 197. As to rule of time of
paying fare, see Nye v. Railroad Co., 97 Cal. 461, 32 Pac. 530.

100 Dickerman y. St Paul Union Depot Co., 44 Minn. 433, 46 N. W. 907;
Northern Cent. Ry. Co. v. O'Conner, 76 Md. 207, 24 Atl. 449.

i«i Beauchamp v. International & G. N. Ry. Co., 56 Tex. 239; Texas & P.
Ry. Co. y. Lndlaxn, 6 C. C. A. 454, 57 Fed. 481. Et vide Ohio & M. Ry. Co.
V. Brown, 46 111. App. 137; International & G. N. R. Co. v. Flores (Tex. Civ.
App.) 26 S. W. 899. Damages can be recovered by error in representation by
ticket seller as to the train beinf? through train, without change, etc. An-
nouncement of change in schedule must be brought home to plaintiff. Dye
V. Virghila Ry., 19 Wash. Law Rep. 369.

i«2 Chicago, M. & St. P. R. Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281.
Et vide Dublin, W. & W. Ry. Co. v. Slattei-y, 3 App. Cas. 1155.

i«3 Robinson v. Southern Pac. Co., 105 Cal. 520, 38 Pac. 94.

i64Gilmore v. Philadelphia & R. R. Co., 154 Pa. St. 375, 25 Atl. 774;
Johns V. Charlotte, C. & A. R. Co., 39 S. C. 162, 17 S. E. 698. Thus, the plat-
form should be properly lighted, Buenemann v. SI Paul, M. & M. Ry. Co., 32
Minn. 390, 20 N. W. 379; Galveston, H. & S. A. R. Co. v. Thoiiisberry (Tex.
Sup. J 17 S. W. 521; and properly prepared for alighting by passengers, Falls
V. San Francisco & N. P. R. Co., 97 CaL 114, 31 Pac. 901 ; Fullerton v. For-

1088 COMMON CARRIERS. [Ch. 14

disease by the company makes it liable.* •• The carrier is liable for
the violence of his servants; as, for example, a baggage clerk.***
Refusal to carry may be a ground of action; **^ but the duty to stop
and afford a safe place for taking on passengers applies (Nily to
customary stopping places.* ••

In Transit.

The duty of diligence applies not only as to safe stations, wharves,
and ai)proaches, but also to providing, maintaining, and inspecting

(lyce, 121 Mo. 1, 25 S. W. 587; Johnson v. Winona & St. P. R. Co., 11 Minn.
296 {(^W. 204); Keller v. Sioux City & St. P. Ry. Co., 27 Minn. 178, 6 N. W.
486. Cf . Bernhardt v. Western Pennsylvania R. Co., 159 Pa. St 360, 28 Atl. 140
(where a passenger stepped on a bung from a keg), and Poole v. Consolidated
St. Ry. Co., ITX) Mich. 379. 59 N. W. 390 (where a steep bank was allowed to
remain at a place for alighting from cains); FuUerton v. Fordyce, 25 S. W.
587 (where a broken plank in platform was allowed to be unrepaired for four
days). As to duty to warn passenger of danger of alighting from rear plat-
form, see McDonald v. Illinois Cent. R. Co., 88 Iowa, 345. 55 N. W. 102;
York V. Canada Atlantic Steamship Co., 22 Can. Sup. Ct R. 167; Mullen v.
Oregon, S. L. & U. N. Ry. Co., 22 Or. 430, 30 Pac. 222. But cf. Seddon v.
Bickley, 153 Pa. St 271, 25 Atl. 1104; an inadequate gate for cheap excur-
sions may prove an expensive luxury. Taylor v. Pennsylvania Co., 50 Fed.
755; Falk v. New York & S. W. II. Co., 56 N. J. Law. 380, 29 Atl. 157;
Cazneau v. Fltchburg R. Co., 161 Mass. 355, 37 N. E. 311; Race v. Union
Ferry Co., 138 N. Y. 644, 34 N. B. 280; East Tennessee, V. & G. Ry. Co. v.
Watson, 94 Ala. 034, 10 South. 228. A collection of authorities as to the
duties and obligations of railroad companies to passengers at station, 58
Am. & Eng. R. Cas. 182, 190.

i«8 Long V. Chicago, K. & W. R. Co., 48 Kan. 28, 28 Pae. 977.

100 Dean v. St. Paul Union Depot Co., 41 Minn. 360, 43 N. W. 54.

107 Hamlin v. Great Northern Ry. Co., 1 Har. & N. 408, 26 Law J. Exch.
20; Buckmaster v. Great Eastern Ry. Co., 23 Law. T. (N. S.) 471. If the
ticket holder is drunk, he may properly be kept off a train In motion, but
not when he has so far boarded the train that it will be less dangerous to
leave him alone. Harrold v. Winona & St. P. R. Co., 47 Minn. 17, 49 N. W.
i;89; Louisville & N. Ry. Co. v. Johnson, 92 Ala. 204. 9 South. 269. And.
further, as to refusal of admission to cars, see Galveston, H. & S. A. R. Co.
v. McMonigal fl'ex. Civ. App.) 25 S. W. 341.

108 The fact that after plaintiff liad entered the train the conductor treated
lilm as a passenger, by collecting his fare from the next station, does not
affect his relation to the company at the time of the injury. Georgia Pac.
Uy. Co. V. Robinson, 68 Miss. 643, 10 South. 60. Cf. Evans v. Interstate
Rapid-Transit- Uy. Co., 106 Mo. 594, 17 S. W. 489.

Ch. 14] CARRIERS OF PASSENGERS. 1089

proper roadways, rolling stock, engines, cars, and other vehicles, and,
generally, places, appliances, and instrumentalitiei^ used in the car-
riage of passengers.^*®

The rule as to use of improvements and devices to prevent injury
corresponds to the duty of the master to provide suitable appliances
and machinery for the servant.^ ^® The carrier is bound to exercise

189 The Northern Belle v. Robson, 9 WaU. iViO (lnspe<tion of barge). Et vide
Eldridffe v. Minneapolis & St. I.. K. Co., 32 Minn. •J.'i:?. 20 X. W. 151; Sim-
mons v. New Bedfoiil, V. & N. S. S. Co., 97 Mass. :i<»l; Melr v. Pennsylvania U.
Co., CA Pa. St. 225; Caveny v. Neely (S. C.) 20 S. E. 80(3. As to defective bridge,
not owned by defendant, Bnrningham v. Rochester Cjty & B. R. Co., 137 N. Y.
13, 32 N. E. 995. Cf. Grote v. Chester & H. R. (^o., 2 Exch. 254. As to road-
bed, (;ulf, C. & S. F. Ry. Co. v. Killebrew {Tex. Civ. App.) 20 S. W. 1005.
reversing 20 S. W. 182 (Tex. Sup.). A railroad track must be laid and main-
tained in safe running order with reference to the strain to which it is sub-
jected. 2 Redf. R. R. § 192; AVithers v. North Kent R. Co., 2 Hurl. & N. 9C9;
Read v. Spaulding, 5 Bosw. (N. Y.) 395, 30 N. Y. (530; O'Donnell v. Allegheny
R. Co:, 50 Pa. St. 490. 59 Pa. St. 239; Tyrrell v. Eastern R. Co., Ill
Mass. 54G. As to defects in doors and windows of cars in absence of
guards, see New Orleans & C. R. Co. v. Schneider, 8 C. C. A. 571, (50
Fed. 210. A carrier cannot be deemed negligent because the door of a
passenger car was not all glass above the middle, so that persons could see
each other coming to the door. («raeff v. PhUadelphia & R. R. Co., 161 Pa.
St. 230, 28 Atl. 1107. Steps on platforms, Matz v. St. Paul City Ry. Co., 52
Minn. 159, 53 N. W. 1071. As to failure to close gates of street cars, Augusta
Ry. Co. V. Glover, 92 Ga. 132, 18 S. E. 406. Derailment caused by rotten ties is
prima facie evidence of nogligentn?. Louisville, N. A. & C. Ry. Co. v. Miller
(Ind. Sup.) 37 N. E. 343. As to broken rail, see Canadian l*ac. R. Co. v.
Challfoux, 22 Can. Sup. Ct. R. 721. Stanchion on ferryboat, Louisville & J.
Ferry Co. v. Nolan, 34 N. E. 710. Failure to provide safe hors€*8, see Knight
V. Pacific Coast Stage Co. (Cal.) 34 Pac. 868. But full 20 minutes for dinner
is not part of its equipment, Texas Trunk Ry. Co. v. Mullins (Tex. App.) 18
S. W. 790; nor is an alarm clock In form of a conductor or a bell to waken
passengers at destination, Nichols v. Chicago & W. M. Ry. Co., 90 Mich. 203.
51 N. W. 3G4; Gulf, C. & S. F. Ry. Co. v. Rj-an (Tex. App.) 18 S. W. 8(i0;
Texas & P. Ry. Co. v. White (Tex. App.) 17 S. W. 419-421: Samuels v. Rich-
mond & D. R. Co., 35 S. C. 49;^, 14 S. E. 943.

170 Jackson v. Metropolitan R. Co., 2 C. P. Dir. 125; Caldwell v. New
Jersey S. S. Co.. 47 N. Y. 282; Baltimore A: O. R. Co. v. State, 29 Md. 2.">2;
Taylor v. Grand Tiimk R. Co., 4S N. H. 304; StoUnveg v. Erie R. Co., 43 N.
Y. 12;^; Toledo, P. & W. R. Co. v. Conroy, C)S 111. .')(50. It is for the Jury to
determine whether reasonable diligence requires that a street-railroad com-

I^W OF TORTS— 69

1090 COMMON CARRIERS. [Ch. 14

commensurate care, in view of all the circumstances, to prevent
damage to its passengers by the operation of its means of convey-
ances, and in avoiding sudden starts and stops,*^^ danger from
curves,^^' or a dangerous rate of speed.^^' It is negligence not to an-
nounce, or to wrongly announce, stations,^^* but not to neglect to

pany should place guards In front of the car windows In order to prevent
passengers from exposing their arms. New Orleans & 0. R. Co. v. Schneider,

5 C. O. A. 571, GO Fed. 210. Whether It is negligence not to have a chain
across the space between the railings on the rear platform of a passenger
car In a mixed train Is a question for the Jury. Newton v. Central Ver-
mont R. Co. (Sup.) 30 N. Y. Supp. 488.

171 Starts and stops, Holmes v. Allegheny Traction Co., 153 Pa. St. 152, 25
Ati. 040; Yamell v. Kansas City, Ft S. & M. R. Co., 113 Mo. 570, 21 S. W.
1; North Chicago St. R. Co. v. Cook, 145 111. rj.M, 33 N. E. 958; Bowdle v.
Railway Co. (Mich.) 01 N. W. 529; Poole v. < Georgia Railroad & Banking
Co., 89 (ia. 320, 15 S. E. 321; Cassldy v. Atlantic Ave. R. (^o.. 9 Misc. Rep.
275, 29 N. Y. Supp. 724; Hill v. West End St. Ry. Co., 158 Mass. 458, 33 N. E.
5S2; Clilcago & A. R. Co. v. Amol, 144 111. 261, 33 N. E. 204. As to street
cui-s where passengers are aligiiting, Cawfield v. Asheville St. Ry. Co., Ill
N. C. 597, 10 S. E. 703; Chicago, B. & Q. Ry. Co. v. Landauer, 36 Neb. 642,
54 N. W. 970; Robinson v. Northampton St. Ry. Co., 157 Mass. 224, 32 N.
E. 1; Conway v. Railroad Co., 46 L41. Ann. 1429, 16 South. 302; Washington

6 G. R. Co. V. Harmon's Adm'r, 147 U. S. 571, 13 Sup. Ct. 557.

172 Lynn v. Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018; Francisco v. Troy
& L. R. Co., 78 Hun, 13, 29 N. Y. Supp. 247; Bmisch v. St Paul City By.
Co., 52 Minn. 512, 55 N. AV. 57. Et vide Seymour v. Citizens* Ry. Co., 114
Mo. 2(M;, 21 S. AV. 739; Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 29J).
10 South. 139.

17:1 Andrews v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 677, 53 N. W. 399;
Cliicago, P. & St L. Ry. Co. v. Lewis, 145 111. 67, 33 N. E. 9lM); Pennsylvania
Co. V. Xewmeyer, 129 Ind. 401, 28 N. E. 800; AVillmot v. Corrigan Consol.
i^t. Ry. Co.. KMJ Mo. 535, 17 S. W. 490; Mexican Cent Ry. Co. v. Laurlcella,
<S7 Tex. 277. 28 S. W. 277. As to effect of municipal ordinance, Cogswell v.
W(»st St & N. E. EhKtric Ry. Co., 5 Wash. 46, 31 Pac. 411.

174 Pennsylvania Co. v. Iloagland. 78 Ind. 2tl3. Cf. Railroad Co. v. As-
polle, 23 Pa. St 147. Recovery has lKH»n allowed for failure of sleeping-car
company to awaken passenger at destination. Pullman Palace-Car Co. v.
Trimble (Tex. Civ. App.) 28 S. W. 90. Where a train stops between sta-
tions on account of a wreck, and the passengers leave the train without ob-
jection from the conductor, it is negligence to start the train without first
giving the passenger timely wnniing to return. Gulf, C. & S. F. Ry. Co.
V. Roundtree (Tex. Civ. App.) 25 S. W. 989.

Ch. 14] CARRIERS OP PASSENGKUS. 1091

state that the train will stop at a railroad crossing before it reaches
the next station. ^^"^

While a railroad company may not be bound to accept as a pas-
senger a person unable to take care of himself, it is liable for negli-
gence in exercising proper care and furnishing sufficient assistance
to such person after it has voluntarily received him as a passenger.
This is a logical application of the general principle that care has
reference to the passenger^s physical and mental condition.^^* This
care extends even to a person manifestly intoxicated.^"^

The carrier is liable for the torts of his servants, including their
negligence, as well as willful or w^anton wrongs.^ ^' A carrier is not

175 Minock v. Detroit, G. H. & M. Ry. CJo., 97 Mich. 425, 56 N. W. 780.

176 weightman v. LoulsvUle, N. O. & T. Ry. Co., 70 Miss. 5«3, 12 South.
586, distinguishing Sevier v. Vlcksburg & M. It. Co., 61 Miss. 8; Meyer v.
St Louis, I. M. & S. Ry. Co., 4 C. C. A. 221, 54 Fed. 116; Sawyer v. Dulany,
30 Tex. 479; Sheridan v. Brooklyn, C. & N. R. Co., 36 N. Y. 39; Philadelphia
C. P. Ry. Co. V. Hassard, 75 Pa. St 367; Allison v. C. & N. W. R. Co., 42
Iowa, 274; Jeflfersonvllle, M. & I. R. Co. v. Riley, 39 Ind. 568-584; Indian-
apolis, P. & C. R. Co. V. Pltzer, 109 Ind. 179, 6 N. E. 310, and 10 N. E. 70;
Croom V. Chicago, M. & St. P. Ry. Co., 52 Minn. 296, 53 N. W. 1128.

177 Fisher v. West Virginia & P. R. Co. (W. Va.) 19 S. E. 578.

1T8 If a conductor advise a passenger to leave a train in motion, and he
does so, to his injury, the company is liable. Jones v. Chicago, M. & St. P.
Ry. Co., 42 Minn. 183, 43 N. W. 1114. Et vide Irish v. Northern Pac. R. Co..
4 Wash. 48, 29 Pac. 845; Prothero v. Citizens' St. Ry. Co., 134 Ind. 431, a'{
N. E. 765; Galloway v. Chicago, R. I. & P. R. Co., 87 Iowa, 458, 54 N. W.
447; Thomas v, Charlotte, C. & A. R. Co., 38 S. C. 485, 17 S. E. 226; Leggett
v. Western Now York & P. R. Co., 143 Pa. St 39, 21 XtL 996. Cf. Wllburn
v. St. Louis, I. M. & S. R. Co., 48 Mo. App. 224. So, If an incompetent en-
gineer bursts a boiler, the company is liable. Fay v. Davidson, 13 Minn. 523
(Gil. 491); or where a grip man lost control of a cable car, Bishop v. St. Paul
City Ry. Co., 48 Minn. 26, 50 N. W. 927; Spohn v. Missouri Pac. Ry. Co., 116
Mo. 617, 22 S. W. 690; Citizens' St. R. Co. v. Wllloel\v, 134 Ind. 563, 33 N. E.
627; Indianapolis Union Ry. Co. v. Cooper, 6 Ind. App. 202, 33 N. B. 219;
East Tennessee, V. & G. R. Co. v. Fleetwood, 90 Ga. 23, 15 S. E. 778. Under
allegations that plaintiff was knocked and kicked from defendant's railway
train by Its conductor, he may recover on proof that the conductor alarmed
him to such an extent that he Jumped off the train. Texas & P. Ry. Co. v.
Williams, 10 C. C. A. 463, 62 Fed. 440. A carrier Is not liable in damages
for an injury caused to a passenger by its servant under circumstances
which free the servant from all criminal or civil responsibility. New Or-

1092 COMMON CARUIKR8. [Ch. 14

necessarily liable for the torts of one passenger committed on an-
other; but if the servants of the carrier have knowledge that there is
an occasion for interference, for example, to afford protection against
drunken and violent men, the company will be liable in damagen
for failure to exercise the power with which such employ^ is clothed
by law."»

Terminntion of Lvibiliti/.

A carrier owes to passengers the duty of allowing a reasonable
time in which to alight and providing a safe place therefor.* ®® This
duty may extend to assistance to a passenger in alighting because of

leans & N. E. R. Co. v. Jopes, 142 U. S. 18, 12 Slip. Ct. loa A short note as
to what constitutes wronjirful expulsion of paKseu^ers from a train, 58 Am.
& Kng. U. Cas. 467, 477, 491, 5H7. 544.

179 Richmond & D. R. Co. v. Jefferson, 89 CmSl. 554, 10 S. E. 69; Graeff v.
PWladelphia & R. R. R., 161 Pa. St. 230, 28 Atl. 1107; Wright v. Chicago, B.
& Q. R. Co., 4 Colo. App. 102, 35 Pac. 190; Thompson v. Manhattan Ky.
Co., 75 Hun, 548, 27 N. Y. Supp. G08; EvansvlUe & I. R. Co. v. Darting. i>
Ind. App. 375, 33 N. E. 630; Sim v. Wabash R. Co., 115 Mo. 127, 21 S. W.
905; Meyer v. St. Louis, I. M. & S. R. Co., 10 U. S. App. 677, 4 C. O. A. 221.
and 54 Fed. 116; EUinger v. Philadelphia, W. & B. R. Co., 153 Pa. St. 213,
25 Atl. 1132; Pounder v. North Eastern Ry. Co. [1892] 1 Q. B. 385. As to Injury
by Insane fellow passenger, see Meyer v. St. I^uls, I. M. & S. R. Co.. 4 C. C.
A. 221, 54 Fed. 116. Plaintiff, a boy 14 yeare old, was a passenger on one of
defendant's sti-eet cars. The car was crowded, and he was standing on the
front platform, leaning against the dasher. He either fell off, or, as he
claimed, was pushed off by passengers getting off, and was run over. Hrhi,
that there was no error in charging that defendant was not liable for the
conduct of the passengers unless It was unusual and dlsonlerly, and could
have been prevented by the persons who had charge of the car at the time.
Randall v. Frankfoi-d & S. P. C. P.' R. Co., 139 Pa. St. 464, 22 Atl. 639. And
see Gulf, C. & S. F. Ry. Co. v. Shields (Tex. Civ. App.) 28 S. W. 709, to the
effect that whether railroad employes were negligent in not going to the as-
sistance of a passenger wliose clothes caught lire from alcohol spilled by a
fellow passenger is a question for the jury. And see Pittsburgh & C. R. Co.
V. PiUow, 76 Pa. St. 510.

180 McSloop V. Richmond & D. R. Co., 59 Fed. 431; Richmond & D. R. Co.
V. Smith, 92 Ala. 2:^7, 9 South. 223; Jackson v. Grand Ave. Ry. Co., 118 Mo.
199, 24 S. W. 192. Et vide authorities collected In 58 Am. & Eng. R. Cas.
2;^, 244, 257. And as to liability of street-car company to passengers board-
ing and alighting from moving cars, see 58 Am. & Eng. R. Cas. 198, 208, 222 -
229. But the duty does not extend to fiurnlshing a passenger a safe path

Ch. J 4] CARRIERS OF PASSENGERS. 1003

physical condition *** or other circumstances.'"^ But it does not re-
quire protection from the rush of alighting passengers, unless there be
reasonable danger to the passenger, or he is in some measure unable to
take care of himself.'®' The duty to stop a train at its destination,
and to afford reasonable opportunity to alight, follows naturally; '***
and if one, while about to alight at such place, is injured by a prema-
ture starting of the train, he may recover.^*"^ If, however, the stop-
ping point be not the customary one, it will depend upon circum-

for further progress after he has left the train at a place where there is not
a regular station. Buckley v. Old Colony R. Co., 101 Mass. 2C, 3(5 N. K. 583.
Passengers are presumed to know manifestly obvious dangers in places where
they alight. Bigelow v. West End «t. R. Co., 161 Mass. 393, 37 N. E. 307.
But see Ohio & M. Ry. Co. v. Stannberry, 132 Ind. 533, 32 N. E. 218.

1 8 1 Madden v. Port Royal & W. C. Ry. Co. (S. C.) 19 S. E. 961.

I ^^ Toledo, St. L. & K. C. R. Co. v. Wiugate (Ind. Sup.) 37 N. E. 274:
CampbeU v. Alston (Tex. Civ. App.) 23 S. W. 33; Croom v. Chicago, M. & St.
P. R. Co., 52 Minn. 296, 53 N. W. 1128 (a man 80 years old).

183 Jarmy v. Dulnth St. R. Co., 55 Minn. 271, 50 N. W. 813.

18* Caldwell v. Richmond & D. R. Co., 89 Ga. 550, 15 S. E. 678; Thomas v.
Charlotte, C. & A. R. Co., 38 S. C. 485, 17 S. E. 22(5; Slra v. Wabash R. Co., 115
Mo. 127, 21 S. W. 905; Louisville & N. R. Co. v. Dancy, 97 Ala. 338. 11 South.
796; Louisville & N. R. Co. v. Lewis (Ky.) 21 S. W. 341; East Tennessee, V. &
( ;. Ry. V. Hyde, 89 Ga. 721, 15 S. E. 621.

185 Washington & G. R. Co. v. Harmon's AdmV, 147 U. S. 571, 13 Sup.
Ct. 557; Robinson v. Northampton St Ry. Co., 157 Mass. 224, 22 N. E. 1;
Chicago, B. & Q. R. Co. v. I^ndauer, 36 Neb. 642, 54 N. W. 976; Carr v.
Railroad Co., 98 Cal. 366, 33 Pac. 213; HUl v. West End St. Ry. Co., 158 Mass.
458, 33 N. B. 582; Chicago & A. R. Co. v. Amol, 144 111. 261, 33 N. E. 204
(46 111. App. 157, afflnned); Gilbert v. West End St. Ry. Co., 160 Mass. 403,
:i6 N. E. 60; Augusta Ry. Co. v. Glover, 92 Ga. 132, 18 S. E. '106; Onderdonk
V. New York & S. B. Ry. Co., 74 Hun, 42, 26 N. Y. Supp. 310; Bernstein v.
Dry Dock, E. B. & B. R. Co., 72 Hun, 4(5, 25 N. Y. Supp. 669; Tobin v. Omnl-
bas Cable Co. (Cal.) 34 Pac. 124; Texas & P. Ry. Co. v. Bryant (Tex. Civ.
App.) 26 S. W. 167; Texas & P. Ry. Co. v. Mitchell, Id. 154; Illinois Cent
R. Co. V. Taylor, 46 111. App. 141; Chicago & A. Ry. Co. v. Byrum, 48 111. App.
41; Warbowlsky v. Ft. Wayne & E. Ry. Co., 86 Mich. 2.*^, 48 N. W. 1097.
In an action against a railroad company for injuries to a passenger in alight-
ing from a train, it was proper to show that a brakeman on the train re-
marked at the time of the accident that "it beats hell; they cannot stop long
enough to let people get off." Omaha & R. V. Ry. Co. v. Chollette, 41 Neb.
578, 59 N. W. 921.

1094 COMMON CARRIERS. [Ch. 14

stance whether or not such person assumed the risk of alighting from
the car while in motion.^®**

180 Cf. Bowie V. Greenville St Ry. Co., 69 Miss. 19G, 10 South. 574, wliere
plaintiff was not guilty of contributory negligence, with Barnett v. East Ten-
nessee, V. & G. Ry. Co., 87 Ga. 766, 13 S. K. 904. Et vide Robinson v. North-
ampton St Ry. Co., 157 Mass. 224, 32 N. E. 1.

TABLE OF CASES CITED.

VOLS. 1 AND 2.

fTh'3 figures refer to the pages. Pages 1 to dVi are comprisod \n volume I ; the res-
idue in volume '^.J

A

Abbett V. llailway Co., 933.
Abbott V. Abbott, 217, 4(53.

V. Chaffee, 738.

V. Heath, 31)2.

V. Kimball, 44.

V. McCadden, 1019.

V. Maxfie, 977.

V. Railroad Co., 237.

V. 7G Land & Water Co., 743.

V. Treat, 582.

V. Wood, 682.
Abel V. President, etc., Delaware &

n. Canal Co.. 1001.
Abelos V. Bransfleld, 462.
Abend v. Railroad Co., 1040.
Abercrombie v. Bradford, 711.
Abernathy v. Wheeler, 735. 736.
Abraham v. Reynolds, 1084.
Abrahams v. California Powder Co.,
848.

V. Kidney, 452, 458.
Abram v. Gulf, C. & S. F. Ry. Co.,

1079.
Abrams v. Milwaukee, L. S. & W.

Ry. Co., 301, 303.
Abrath v. North-Ea stern Ry. Co.,

168, 181, 513, 616, 620.
Absor V. French, 678.
Acheson v. Miller, 721.
Ackerley v. Parkinson, 121.
Ackert v. Long Island R. Co., 969.
Ackroyd v. Smith, 682.
Acme Coal Min. Co. v. Mclver, 1052.
Acton V. Blundell, 90, 758.
Adams v. Bank, 38.'5.

V. Bickuoll. 618.

Adams v. Blankenstein, 719.

V. Coleridge, 542.

V. Corriston, 704.

V. Fletcher, 223, 224, 772.

V. Freeman, 43.

V. Gardner, 384.

V. Gillam, 628.

V. Iron ClilTs Co., 955.

V. Kelly, 491.

V. Lawson, 479, 494.

V. McGlinchy, 712.

V. Main, 465.

V. Ohio Falls Car Co., 787.

V. Olin, 337.

V. Paige, 85.

V. Railroad Co., 104, 411, 693.
791, 832, 88(5, 946, 967.

V. Rivers, 680, 681. 690.

V. Tapling, 315.

V. Waggoner, 203.

V. Young, 812.
Adams Express Co. v. Harris, 300,
305.

V. Stettaners, 303.
Adamson, Ex parte, 41.

V. Janis, 21,5. 216.
Addington v. Allen, 589.
Addyston Pipe & Steel Co. v. Copple,

320.
Ades V. Levi, 354.
Adler v. Fenton, 773.

V. Metropolitan El. R. Co., 787.
Adm'r of Chambers v. Trust Co., 99.
Ady V. Freeman, 366.
Aoikfetz V. Humphreys, 884, 966.
Aetna Ins. Co. v. Boon, 78.

V. Reed, 578, 581, 599.
Aetna Life Ins. Co. v. Paul, 172.

LAW OF TORTS

(1095)

low

CASES CITED.

[^'ol. 1 comprises {jages 1-C52, inclufdye; vol. 2 the residue.]

Aga Kurboolie Mahomed v. Queen.

G75.
A^ars V. Lysle, 718.
AKiiK'ourt, Tlie. 141).
Ahern v. Oregon Telegraph & Tele-
phone Co., 8(>3.
V. Steele, 224. 79U, 797.
Ahl V. Goodhart, 32;^
Ahlbeck v. St. Paul, M. & M. Uy. Co.,

1078.
Ahreus v. United Growers Co., 310.
Aiken v. Buck, i>(59, 071, (J72.
Akerley v. Haines, 4.'59.
Akers v. Chicago, St. P., ^I. & O. Uy.

Co., 921.
Akin V. Newell, 418.
Akrldge v. Atlanta & W. P. R. Co..

2G5, 829.
Akron v. ('hamberlain (^o., 142.
Alabama Conuellsvllle Coal & Iron

Co. V. Pitts, 1000.
Alabama G. S. R. Co. v. Carroll, 103.
V. Chapman, 374.
V. Dobbs, 989.
V. Fulghum. 104, 1002.
V. Han-ls, 255, 262.
V. Linn, 824, 882, 892, 940. 947.
V. Little, 301.
V. Tapla, 388.
V. Thomas, 300.
Alabama Midland Ry. Co. t. Martin.

228, 230.
Alabama & T. R. R. Co. v. Kidd. 719.

725.
AlalMima & V. R. Co. v. Brooks, .">;iO.
V. Davis, 982.
V. Hanes, 391.
V. McAfw, 2<>2.
V. Pliilips, 92:5.
V. Searles, 1071.
V. Sparks, 107r».
V. Summers, 8(J0.
V. Tiu-nbull, 319.
Alair V. Northern Par. R. Co., 304,

305.
A la mango v. Supervisors, 12(;.
Alaska Treadwell Gold Min. Co. v.

Whelan, 979, 1(K)3.
All)any v. Cunliff, 180.
Albany City Sav. Inst. v. Burdick.

599.
Albert v. State, 22<;. 332.

Alberts V. Baehe, 1000.

V. Village of Vernon. 950.
Albertson v. Keokuk & D. M. Ry. Co.,

988.
Albltz V. Railway Co., 42, 270.
Albrecht v. Milwaukee & S. R. Co..
318.

V. Walker, 395.
Albright v. McTlghe, 213, 214, 342.
Albro v. Jaquith, 281. 899.
Alcorn v. Chicago & A. Ry. Co., 1022.

V. Hooker, 523.

v. Philadelphia, 181.
Alden v. City of Minneapolis, 704.

V. Wright, 88, 000.
Alder V. Buckley, 913.
Alderd v. Constable, 724.
Aldlne Manuf'g Co. v. Barnard, 898.
Aldred's Case, 750, 751. 769, 772, 775.
Aldrlch V. City of Minneapolis, 7vS7,
795.

V. Concord & M. R. R., 949.

V. Howard, 777.

V. Monroe, J>48.

V. Press Printing Co., 109, 535.

V. Weeks, 425, 430.

V. Wet more, 387, 783.

V. Wright, 152, 190.
Aldworth v. City of Lynn, 898.
Alexander v. Alexander, 503.

v. Blodgott, 431, 430.

V. City of Vicksburg, 174.

V. Fislier, 701, 702.

v. Hard, 070.

V. .Tenklns, 474, 4as, 507, 508.

V. KeiT, 779.

V. Northeastern Ry. Co., 52: >.

V. Pennsylvania Co., 10?.

V. Relfe, 171.

V. Richmond & D. R. Co., 928.
970.

V. Southey, 728, 729.

V. Swackhamer, 717.

V. Town of New Castle, 70.

V. U. S., 758.
Alexandria Min. & Exploring Co. v.

Painter, 001.
Alfre<l Shrimpton & Sons v. Phil-
brick, 59(5.
Alger V. Ix)well, 1(55, 873.

V. Railroad Co., 142.
Alhauser v. Butler. 916.

CASES CITKD.

1097

[Vol. 1 comprises pcgos 1-652, iiiclustve; vol. 2 the residue.]

Aliston V. NashTille, C. & St. L. R.

Co., 315.
All V. Barnwell Co., 333.
Allaback v. Utt, 743.
Allan V. Colby, 676.

V. State, 007, 914.
AUbutt V. General Council of Med-
ical Education & Registration, 534.
Allec V. Reece, 122, 12:3.
Allegheny v. Zimmerman, 66.
Allen V. Addlngton, 576.

y. American Bldg. & Loan Ass'n,
721.

V. Boston, 768.

V. Butman, 704.

V. City of Boston, 179.

V. City of Chippewa Falls, 763.

V. Clark, 917.

V. Codman, 609, 617.

V. Crofoot, 526.

V. Fenton, 638.

V. Fiske, 683.

V. Goodwin, 1041.

V. G. W. & F. Smith Iron Co.,
994.

V. Hallet, 150.

V. Hitch, 308.

V. Kirk, 132, (i40, Gil.

V. Ijconard, 428.

V. Merchants' Bank. 134.

V. Milner, 315.

V. News Pub. Co., 404.

V. Pioneer Press Co., 521, 546.

V. Railway Co., 172, 254, 270, 370,
980.

V. Rundle, 583.

V. San Jose Land & Water Co.,
760.

V. Sisson, 120.

V. State S. S. Co., 93a

V. Stephenson, 840.

V. Truesdell, 504.

V. Weber, 755.

V. Wheatley, 342.

V. Willard, 035.

V. Wright, 427.
Allen Co. Com*rs v. Bacon, 182.
Alliger v. Brooklyn Daily Eagle, 475.
Allis V. Columbian University, 870.

V. Day, 301.

V. I^eonard, 026.

T. Voigt. lOGO.

Allison V. Little, 324, 654.

V. Railroad Co., 381, 403, 848,
1001.
AJlsop V. Allsop, 373, 497.
Almond v. Nugent, 913.
Almy V. Harris, 98, 349.
Alpern v. Churchill, 030.
Alston V. Scales, 84, 667.
Althorf V. Wolfe, 266, 300, 992.
Altnow V. Town of Sibley, 183.
Alton V. Midland R. Co., 905.
Alton L. & C. Co. V. Calvey, 944, 1035.
A. L. & J. J. Reynolds Co. v. Third

Ave. R. Co., 079.
Amann v. Damm, 540.
Amatb v. Northern Pac. R. Co., 941.
Ameluug v. Seekamp, 804.
Amer v. Longstreth, 392.
American Bank Note Co. v. New

York El. R. Co., 411.
American Exp. Co. v. Patterson, 160.

v. Sands, 301.
American Furniture Co. v. Town of

BatesvlUe, 349, 799.
American Ins. Co. v. Crawford, 270.
American Preservers' Co. v. Drescher,

001.
American Print Works v. Lawrence,

140, 678.
American Transp. Co. v. Moore, 1062.
American Union Tel. Co. v. Mkld e-

ton, 103, 660.
American Watei-works Co. v. Dough-
erty, 370, 055.
Amerlscoggln Bridge Co. v. Bragg.

686.
Ames V. Union R. Co., 4.')0.
Amick V. O'Hara, 33, 50, 15(5, 654, 822.
Amies v. Stevens, 1062.
Ammant v. Turnpike Road, 02.
Amory v. Flyn, 050.
Amoskeag Mauuf'g Co. v. Goodale,

82, 700.
Amstein v. Gardner, 678.
Amy V. Supervisors, 128, 137.
Anbergate, etc., Ry. Co. v. Midland

Ry. Co.. (5(53.
Anchor Line v. Dater, 1073.
Andalusian, The, 860.
Anderson v. Arnold, 68,
V. Beck. 410.
V. Bemett, 503.

1098

CASES CirED.

[Vol. 1 comprises pages 1-052, incluaiye; vol. 2 the residue.]

Anderson v. Cblcago, B. & Q. Ry. Co.,

V. Cbioago, St. P., M. & O. Ry.
Co., 949.

V. Clark, 201.

V. Dickie, 797.

V. Dunn, IIG.

V. Field, 318.

V. Guineau, 992.

V. Harvey's Heirs, ()91.

V. How, 627, aSl.

V. Manhattan El. R. Co., 837.

V. Millikiu, 13D.

V. Minnesota & X. W. R. Co., 993,
1008.

V. Northern Mill Co., 874. ItJOl.

V. Pacific Ins. Co., 579.

V. Smith, 153.

V. Western Union Tel. Co., 309.
Anderson Co. Com'rs v. Bcal, 956.
Anderson L. & St. L. R. Co. v. Ker-

nodle, 411.
Andrew v. Deshler, 551-.')53.
Andrews v. Boedecker, 2(>t>.

V. Chicago, M. & St. P. Ry. Co.,
1086, 1090.

V. Clark, 741.

V. Ft. Worth & D. C. R. Co., 196

V. Hartford & N. H. R. Co., 335.

V. Portland, 443.

V. School Dist., 326.

V. Vanduzer, 524.
Angell V. Loomis, 562, 571, 577.
Angevine v. Knox-Goodrich, 794.
Angle V. Chicago, St. P., M. & O. Ry.

Co., 636, 638.
Anglin v. Texas & P. R. Co., 1015.
Angus V. Clifford, 566, 568.

V. Lee, 8:37.
Anheuser-Busch Brewing Ass'n v. Pe-
terson, 148, 763.
Ankeny v. Moffett, 216.
Annapolis & E. R. Co. v. Gantt, 78.
Anniston Pipe- Works v. Dickey, 813.

961.
Anonymous, 98, 489, .■>42, 623, 726, 727.
Anscomb v. Shore, 27.
Anson v. Stuart, 495.
Antcliff V. June, 634.
Anthony v. Haney, 677.

V. Raih'oad Co., 669.

V. Slald, 86, 380.

AnUe V. Sexton, 568, 570.
Anvil Mining Co. v. Humble, 298.
Appei V. Railway Co., 1017.
Applebee v. Percy, 857.
Appleton V. Fullerton, 82, 84.
Appleton Mill Co. v. Warder, 723.
Arcedeckne v. Kelk, 750.
Archbishop v. Robeson, 492.
Archibald v. McLaren, 626.
Ardesco Oil Co. v. Gilson. 232.
Arey v. City of Newton, 973.
Arizona Lumber & Timber Co. v.

Mooney, 100<5.
Arkansas Tel. Co. v. Ratteree, 864.
Arkansas Val. Land & Cattle Co. v.

Mann, 739.
Arkdelphia v. Windham, 184.
Arkerson v. Dennison, 1046.
Arkwright v. Gell, 759.

V. Newbold, 572.
Arment v. Hensel, 098. 705.
Armlstead v. Chatters. 450.
Armistead Lumber Co. v. Louisville,

N. O. & T. R. Co., 1066.
Armitage v. Widoe, 43, 160.
Armory v. Delamirie, 250, 711.
Armstrong v. Cooley, 842. 843.

V. Forg, 1006.

V. Fresz, 354.

V. Railroad Co., 307, 612, 945, 981,
1039.

V. United States Exp. Co., 299,
301, 1074.

V. White, 597.
Armstrong Co. v. Carrion Co., 216.
Armytage v. Haley, 404.
Am V. City of Kansas, 764.
Arnold v. Jewett. 500. 548.

V. Moses, 618.

v. Mundy, 659.

V. Pennsylvania R. Co.. 191. 826.
Arnott v. Standard Ass'n, 510, 518,

519.
Arrington v. Larrabee, 686.
Arrov/smith v. Le Mesurier, 421.

V. Nashville & D. R. Co.. 1080.
Arrow Steamship Co. v. Bennett, 505.
Arthur v. Oakes, 3.j8, 359, 638, 644.

V. St. Paul & D. R. Co., 1070.
Artz V. Railroad Co.. 882. 920. 929.
Anmdel v. McCulloch, 149.

V. Tregono, 610.

CASES CITED.

1099

[Vol. 1 comprises pages 1-652, inclusiye; vol. 2 the residue.]

Asevado v. Orr. 619.

Ashby V. White. 79. 81. 87, »4. 135,

149, 3(56, 367. 772.
Ashdown v. Manitoba Free Press Co.,

521.
Asher v. CabeU, 327.
Ashfield V. Edgell, 728.
Ashley v. Harrison. 385. 387.

V. Hart, 105<5.

V. Port Huron. 176.

V. Taylor, 329.
Ashlin v. White. 587.
Ashlock V. Vivell, 159.
Ashmead v. Reynolds, 311.
Ashmore v. Hardy. 6C9.
Ashton V. Stock, 661, 671.
Ashurst V. McKensie. 691.
Ash worth v. Stanwix, 292, 1035.
Askew V. Hale. 183.
Aspegren v. Kotas. 197.
Asser v. French. <»78.
Assop V. Yates. SCJG.
Aston V. Heaven, 1058.
Atchlnson v. Peterson, 91.
Atchison, T. & S. F. R. Co. v. Bales,
972.

V. Bryan, 1076.

y. Calvert, 988.

V. Click. 362.

V. Dill, 902,

V. Elder, 925, 926.

V. Feehan, 979.

V. Hague, 885. 923.

V. Headland, 1081.

V. Lawler, 301. 1071.

V. Long, 754, 755.

V. McClurg, 861.

V. McGinnis, 393.

V. Martin, 103S, 1040.

V. Midgett, 370.

V. Myers, 945, 995.

V. Parker, 949.

V. Reesman, 921. 922. 1019, 1049.

V. Richardson, 308, 1072.

V. Schroeder, 10.50.

V. Seeley, 1038.

V. Smith, 198.

V. Stanford, 375. 382, 972.

V. Tanner, 729.

V. Weber, 197.

V. Wilson, 414. 10.52.

V. Zeiler, 1013.

Atchison & C. R. R. v. Washburn,

305.
Atchison & N. R. Co. v. Flinn. 197.

V. Garside. 140.
Atkins v. Chilson, 704.
V. Moore, 714.
V. Perrin, 553.
Atkinson v. City of Atlanta, 413.
V. Goodrich Transp. Co., 78, 375,

376.
V. Heer, 131.
V. Hewitt, 705.
V. Mott, 471.
V. Newcastle, 98.
V. New CasUe & G. Water Works

Co.. 186. 919.
V. Ritchie, 1065.
Atlanta Journal v. Mayson, 522.
Atlanta St. R. Co. v. Jacobs, 471, 472.

V. Walker, 879.
Atlanta & C. Air-Line Ry. Co. v.

Gravitt, 890. 985.
Atlanta & F. R. Co. v. Fuller, 1081.

V. Kimberly, 798.
Atlanta & W. P. R. Co. v. Smith, 381,

1006.
Atlantic & F. Ry. Co. v. Kimberly,
232.

Atlantic &. G. W. Ry. Co. v. Dunn,

395.
Atlantic & P. R. Co. v. Laird. 210,

903, 1071.
Atlantic & W. P. R. Co. v. Hudson,

887.
Atlas, The, 215.

Atlas Engine W^orks v. Randall, 1006.
Atlee V. Packet Co.. 979.
Attack V. Bra m well. 680.
Attorney General v. Bridge Co.. 81.
V. Ck)nservators, 777.
V. Coimcil, etc., of Birmingham,

777.
V. Evart Booming Co., 745.
V. Great Eastern R. Co.. 755.
V. Hunter, 804.
V. Lum, 351.
V. McDonald, 119.
V. Revere Copper Co., 759.
V. Steward, 781.
Attorney General for Trinidad and

Tobago V. Eriche, 322.
Attwood V. City of Bangor, 786. 798.

1100

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusiye; vol. 2 the residue.]

At t wood V. Monger, (>()U.
At water v. Baltimore, 174.

V. Tiipper, 346, 721.

V. Whiteman, 602.
Atwlll V. Mackintosh, 517.
Atwood V. Ernest, 733.

V. Monger, 603. 60r», 607.
Auburn & C. P. R. Co. v. Douglass,

56, 773.
Auclimuty v. Ham, 836.
Audubon v. Excelsior Ins. Co., 326.
Augusta Evening News v. Radford,

494.
Augusta R. Co. v. Andrews, 195.

V. Glover, 104, 8(57. 1089. 1093.
Aulls V. Young, 362.
Aultman v. Olson. 599.
Aurora v. Love, 180. 764.
Aurora R. Co. v. Grimes, 1085.
Austin V. Appling. 293.

V. Bacon, 220.

V. Barrows, 638.

V. Cars well, 12.

V. Chicago, R. I. & P. Ry. Co., 948.

V. Culpepper, 477.

V. Dowling. 423.

V. Hllliers, 404.

V. Holt, 658.

V. Mills, 322.

V. Vrooman, 122-124, 424.
Austin & N. W. Ry. Co. v. Anderson,
336.

V. Beatty, 819.

V. Saunders, 930.
Australasia Banli v. Harding, 321.
Avery v. Chapman, 563.

V. Halsey, 216.

V. Ray, 445.

V. Wilson, 158.
Avery & Sons v. Meek, 1016.
Avey V. Galveston, H. & S. A. Ry.

Co.. 987. 988.
Axford V. Mathews, 709.
Axmann v. Lund. 552.
Aycrigg*s Ex'rs v. New York & E.

Ry.. 258.
Ayer v. Ashmead, 342, 343.

v. Bartlett, 711.

V. City of Norwich, 748, 766.

V. Colgrove, 460,

V. Western Union Tel. Co., 304,
899.

Ayers, In re. 111, 112.
Ay les worth v. St. John, 527.
Ayres v. Chicago & N. W. Ry, Co.,
1057.
V. Toulmin. 4S.5. 510, 511.
Ay re's Case, 570.

B

Babb V. Curatore of the University
of Missouri, 808.

V. Mackey, 349.
Babbage v. Powers, 233. 772, 886.
Babcock v. Fitchburg R. Co., 844.

V. New Jersey Stock Yard Co.,
804, 806.

V. Old Colony R. Co., 1008.

V. St. Paul, M. & M. Ry. Co., 390.
Babcock & Wilcox Co. v. Pioneer

Iron Works, 344.
Bachelder v. Cliaves. 131.

V. Heagan, 842. 843.
Bacheller v. Pinkham, 289.
Backhouse v. Bonoml, 87, 335, 338.

V. Sneed, 1062.
Bacon v. City of Boston, 174, 790, 798.

V. Delaware, L. & W. R. Co.. 958.

V. Michigan Cent R. Co., 479,
540, 544.

V. Towne, 611, 618, 621.
Baddeley v. Granville, 923.
Badder v. Keefer, 456, 457, 460.
Badger v. Phinney, 161, 163.
Badgley v. Decker, 459.

V. Hedges, 526.
Bagby v. Harris, 3<i6.
Bagley v. People, 783.
Bagshaw v. Go ward, (580.
Baikle v. Cliandless, 917.
Bailey v. Adams, 723.

V. Birtles, 329.

V. Bussing, 216.

V. Cincinnati, N. O. & T. P. R.
Co., 977.

V. Dean, 551, ,553.

V. Gas Co., 909.

V. Kimball. 952.

V. Lawrence Co., 183, 184.

V. Mayor, 136.

V. Moulthorp, 718.

V. O'Bannon, 457.

CASES CITED.

1101

[Vol. 1 compriaes pages 1-652, inclusive; vol. 2 the residue.)

Bailfy v. Publisbing Co., 510.

V. Rome, W. & O. R. Co., 951,
1008.

V. Siegel Gas Fixture Co., 666.

V. Troy & B. Ry. Co., 232, 234

V. Wiggins, 118.
Bailie v. Merrill, 588.
Baily v. Merrell, 597, 600.
Bain v. Sandusky Tranap. Co.. 14.
Baiuard v. City of Newton. 75(5.
Balrd v. Boehner, 311, 459, 4tM).

V. GUlett, 910.

V. Householder, 605.

V. Howard, 166, 721. 739.

V. Morford. 913.

V, Petti t, 261.

T. Shipman, 290.

V. Williamson, 757.
Baken v. Boston, 808.
Baker v. Barton. 443.

V. Beers, 715, 717.

V. Bolton, 327.

V. Braslin, 218.

T. Drake, 360, 741.

V. Prick, 408.

V. Hart. 532.

V. Holtpzaffell, 227.

V. Leka, 339.

V. Lever, 596.

V. Lewis, 680.

V. Lothrop, 727.

V. Lovett, 159.

V. Morris, 160.

V. Pennsylvania Co., r.Ol.

V. Portland, 926.

V. Ralh^-ay Co.. 708, 720. aS9.

V. Sebright, 703.

V. Secor, 211.

V. State, 119.

V. Westmoreland & C. Nat. Gas
Co., 941.

V. Wheeler, 3<U.

V. Young, 217, 221.
Baldwin v. Barnoy, 194.

V. Calkins, 37.

V. Ca sella, 8.57.

V. Cole, 724. 726.

V. Elphinston, 480.

V. Ensign, 7i\S.

V. Hayden, 443.

V. Hutchinson, .526.

V. Liverpool & G. W. S. S. Co..
1060.

Baldwin v. Railway Co., 361, 389.

V. Weed, 133, (532.
Bales V. Wingfield, 83,
Ball, Ex parte, 11.

V. Axteu, 58.

V. Bennett, 217, 221.

V. Bruce, 454.

V. Horrigan, 422. 430, 629.

V. Kehl, 759.

V. Liney, 728.

V. McGeoch, 311, 317.

V. Nye. 758, 768, 771, 840.

V. Palmer, 733.

V. Rawles, 620, 623, 627.

V. Ray. 778.

V. Town of Woodbine. 178.
Ballard v. Carmichael, 672.

V. Dyson, 689.

V. Tomlinson, 90, 757, 853.
Ballentine v. Poyner, 699.

V. Webb, 769, 805.
Ballou V. Earle, 304, 305, 901.

V. Railway Co., 995, 1056.
Balme v. Hutton, 710.
Baltimore Belt R. Co. v. Lee, 691.
Baltimore City Pass. Ry. Co. v. Kemp,
381, 903.

V. McDonnell, 928, 989.
Baltimore Traction Co. v. State. 1082.

V. Wallace, 198.
Baltimore & C. Ry. Co. v. Reaney,

101.
Baltimore & O. R. Co. v. Barger, 262.
276, 397.

V. Baugh, 1038, 1039, 10*1-1043,
1047, 1048.

V. Boteler, 381.

V. Brady, 309.

V. Dorsey, 846.

V. Kean, 371.

V. Kee<ly, lt>70.

V. Kemp, 377.

V. Mali, 928.

V. O^Donnell. 720. 721, 726, 739.

V. Rambo, 044, 947.

V. Skeels, 300.

V. State, 261. 928, 982, 1089.

V. Sulphur Springs Dist., 70.
Baltimore & O. & C. R. Co. v. Wal-

born, 932.
Baltimore & P. R. Co. v. Fifth Bap-
tist Church, 141, 143. 144, 170, 413,
781, 791.

1102

CASES CITED

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the resiilue.]

Baltimore & P. R. Co. v. JoneH, 070.

V. Reaney, 76, 143.

V. State, 1017.
Baltzer v. Chicago, M. & N. R. Co.,

78, 402, 954, 967.
Bamford v. Turnley, 749, 776, 778.
Bancroft v. Boston & W. R. Co., 1086.

V. City of Cambridge, 789.
Bancroft-Whitney Co. v. Taclfic

Coast Steamship Co., 903.
Bandell v. May, 617.
Bangor v. Lansil, 763.
Bangs V. Little, 150.
Banister v. Wakeman, 119.
Bank v. Bowdre, 522.

V. Brainerd School Dist., 182.

V. Fourth Nat Bank, 134.

V. Goos, 83.

V. Owens, 85.

V. Strong, 527.
Banking House v. Brooks, 728.
Bank of British North America v.

Strong, 606.
liank of Commerce v. Goos, 380.
Bank of Kentucky v. Adams p]xp.

Co., 302, 1057, 1072.
Bank of New South Wales v. Owston,

168, 280.
Bank of State of Georgia v. Porter,

691.
Bank of United States v. Daniel, 581.
Banks v. Wabash Ry. Co., 990.
Banner Pub. Co. v. State, 537.
Banning v. Chicago, R. I. & P. Ry.

Co., 975.
Bannister v. Hyde, 675.
Bannon v. Baltimore & O. R. Co., 951.

V. Lutz, 955, 1010, 1014.
Banque v. Brown, 584.
Barbarick v. Anderson, 669.
Barbee v. Armistead, 466.

V. Reese, 165, 431.
Barber v. Armistead, 466.

V. Lamb, 322.

V. Penley, 765.

V. Railway Co., 770, 892, 924.

V. Reese, 72.

V. Rollinson, 423, 004.

V. Scott, 604, 618, 620, 625.
Barber Asphalt Pav. Co. v. Odasz,

949.
Barbo v. Bassett, 956. 957.
Barbour v. Stephenson. 47m. 450.

Barclay v. Com., 802.

Barden v. City of Portage, 170, 7.'»4.

V. Felch, 279.
Bare v. Hoffman, 412, 413.
Barfield v. Putzel, 785, 804.
Barham v. Xethersal, 510.

V. Turbeville, 161.
Barhight v. Tammany, (r22. 625.
Barholt V. Wright, 204, 445.
Barhydt v. Valk, 418.
Barker v. Bra ham, 420.

V. Railway Co., 470.
Barker *s Estate, In re, 205.
Barkley v. Wilcox, 760, 761.
Barley v. Walford. 571.
Barnard v. Bartlett. 675.

V. Coffin, 285.

V. Poor, 842. 843.

V. Shirley, 757.
Barnardlston v. Chapman, 668.
Barnard's Case, 100.
Barndt v. Frederick, 598. 600, SOS.
Barnes v. Allen, 465, 4(57, 472.

V. Brown, 858, 877.

V. Campbell. 535.

V. Chapin, 855.

V. Crawford, 498.

V. District of Columbia, 177. ISl.
183.

V. Hathorn, 779.

V. Keene, 462.

V. McCrate, 528.

V. Means. 914.

V. Racine, 9.

V. Railway Co.. 569, 581, 592, .597.

V. Viall, 342.

V. Ward, 190, 766, 885, 891.
Barnctt v. Allen, 4J)0.

V. Harnett, 502.

V. Contra Costa Co., la*?, 1H4.

V. Earl of Guildford, 680. (kS7, 092.

V. East Tennessee, V. & G. Ry.
Co., 1094.

V. Northeastern R. Co.. 9;{7.

V. Reed, 632, 634.

V. Water-Power Co., ;^01.
Barney v. Hannibal & St. J. R. Co..
890.

V. Pinkham, 913.
Barney Dumping- Boat Co. v. City of

New York, 181.
Barnow^ski v. Helson, 839.
Barnstable v. Tha<'hor. 071.

CASES CITED.

jio;5

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Bariium v. Chicago, M. & St. P. Ry.
Co., 333.

V. Terhenlng, 819.
BaiT V. City of Kansas, 178, 947.

V. Essex Trades Council, 359, G4«,
&48, 649.

V. Moore, 536.

V. Shaw, 631.
Barrelett v. Bellgard, 742, 743.
Barrett v. Long, 521.

V. ralmer, 103.

V. Southern Pac. Co., 830.

V. Third Ave. R. Co., 342. 400.

V. Village of Hammond. 174. 868.

V. Warren, 722.

V. White, 128, 680.
Barron v. City of Detroit, 178.

V. Mason, 621.
Barrow v. Lewellin, 480.
Barrowington's Case, 141.
Barrows v. Bell, 534.

V. Fox, 756.
Barry v. Arnaud. 79.

V. Croskey, 585.

V. Edmunds, 393.
Barter v. Wheeler, 1073.
Barthe v. Larquie, 422.
Bart hold v. Philadelphia, 177. 179.
Bartholomew v. Bushnell. 550.

V. Plerson, 564.
Bartlett v. Boston Gaslight Co., 224,
9(«5, 972.

V. Christhilf, 526, 527.

V. Crozler, 127, 128.

V. Hawley, 614.

V. Siman, 796.

V. Wells, 164.
Biirtley v. Rlchtmeyer. 452. 454.

V. Trorlicht, 381, 389.
Barton v. Home Ins. Co., 78.

V. Kavanaugh, 604, 619.

V. Pepin County Agricultural Soc.
375.

V. Union Cattle Co., 756, 807.

V. Wolliford, 1063.
Bartonshill Coal Co. v. Ried, 275, 1030.
1(«2.

Bar well v. Brooks, 774.
Barwick v. Bank, 2r»8, 269.

V. English .Toint-Stock Bank, 169.
270.
Bascom v. Dempsey, 6iii», 667.

Basebe v. Matthews, 610, 611, 618.
Baseley v. Clarkson, 653.
Basnight v. Railroad Co., 1070.
Bass V. Railway Co., 45, 169. 263, 274,

395.
Bassett v. Bassett, 468.

V. City of St. Joseph, 968.

V. Connecticut River R. Co., 84(».

V. Fish, 139.

V. Salisbury Manuf'g Co., 758.

V. Shares, 362.
Bassil y. Elmore, 489.
Biist V. Leonard. 391.
Baston v. Springfield, 870.
Batchelor v. Fortescue, 891.
Baten's Case, 799. 800.
Bates V. Clark, 111.

V. Pilling, 246.

V. Preble, 340.
Bateson v. Gosling, 346.
Batterson v. Chicago & G. T. Ry. C'o..

820.
Battishill v. Humphreys. 986.

V. Reed, 411, 749.
Battie V. McArthur. 316.
Bauer v. Clay, 417, 420, t531.
Bauerschmitz v. Bailey, 221.
Baugh V. Texas & N. O. R. Co., 801>.
Baughman v. Ijoulsvllle, E. & St. L.

R. Co., 303, 306.
Baum V. Holton, 580.

V. Mullen, 220, 222.
Baumann v. Jefferson, 728.
Bavard v. Hoffman, 135.
Baw V. Essex Trades Council, 636.
Baxter v. Bush, 159.

V. Railway Co... 253, 1071.

V. Roberts, 1006, 1007.

V. Taylor, 84, 666. 779.

V. Troy & B. R. Co.. 930.

V. Turnpike Co., 183, 385.
Bay ley v. Eastern R. Co., 944.

v. Manchester Ry. Co.. 2.54.

V. Wolverhampton Water Works
Co., 1S(».
Baylis v. Sclnvnllmch Cycle Co., 277,
-SI).

B. C. Evans Co. v. Reeves, 634.
Beach v. Crain, 408.

v. Oaylord, 762.

V. Hnncock, 10, 369, 432, 433.

V. Ranney, 489.

llOi

CASES CITED.

[Vol. 1 compribes pncjes 1-(J52, inclusive; vol. 2 the residue.]

Beach V. Trurtjjaln, 141).

V. Tiick, r)(;2.
Beal V. Robeson. G23.
Reals V. Guernsey, HiiS.
Bean v. Western N. C. H. Co.. 31S.
Bearce v. Bowk'er, 722.
Beaulinore v. Tredwell. 780.
BearcVs Adm'r v. Chesapeake & O. R.

Co.. 990.
Beardslee v. French. G90.

V. Richardson, 911.
Beardsley v. Day, 42.

V. Minneaix)lis St. Ry. Co., 1009.
Beatrice Gas. Co. v. Thomas, 410, 758.
Beatson v. Skene, 529. 531, 541.
Beaty v. Perkins. 676.
Beauchamp V. International &, G. N.
Ry. Co.. 1087.

V. Saginaw Mining Co., 848.
Beaulleu v. Finglam, 249.
Beaumont v. Barrett. 116.

V. Great head, 366.
Beaumont Lumber Co. v. Ballard,

682.
Beavers v. Wlmnier, 797.
Bebee v. Steel. 418.
Beblnger v. Sweet. (W4.
Becherer v. Stock, 523.
Beck V. Carter. 886.

V. Dowell, 398.

V. German Kllnik, 913.

V. Stitzel, 503.
Becke v. Missouri Pac. R. Co., 332.

982.
Bw»ker v. Baltimore & O. R. Co., 1038.

V. Janeniski, 978.

V. Janinski, 471. 909. 913.

V. Mason, 159, 457, 458.

V. Smith, 665.
Beckett v. Cordley. 164.
Beckham v. Hillier, 1023.
Beck man v. Shouse, 301.
Bcckwith V. Elsey, 723.

V. Frisble, 10(W.

V. Philby, 427.

V. Shordike, 18.
Becquet v. MacCarthy, 841.
Becraft v. Grist, 591.
Beddall v. Maitland, 442, <;87.
Bedell v. Bailey. 119.
Bedford v. Bagshaur, 580.

Bedlngfield v. Onslow. <>D2.
Beebe v. De Baum. 418.

V. Wilkinson, 741.
Beede v. Lamprey, 740.
Beehler v. Daniels. 891.
Beeler v. Jackson, 540.
Beeman v. Buck, 559.
Beers v. Arkansas, 112.

V. State, 110.
Beeson v. Busenbark, 1056.
Befay v. Wheeler. 693.
Behn v. Bumess, 363.

V. Kemble, 566.
Behrens v. McKenzie, 158.
Beldeman v. Atlantic City R. Co., 790.
Beihofer v. Loefifert, 622. 627.
Beir v. Cooke. 793.
Beisiegal v. Railrotid Co., 933.
Beisiegel v. New York Cent. R. Co.,

926.
Belcher v. Costello. 578.
Belden v. Chase. 860, 979.
Belfast, The, v. Boon, 581.
Belger v. Dinsmore, 303, 310.
Belknap v. Ball. 536.
Bell V. Byerson, 317.

V. Hansley, 203.

V. Hoagland, 326.

V. Josselyn. 36, 289.

V. Keepers, 605.

V. Matthews, 611.

V. Railway Co., 140, 337.

V. Reed, 1063.

V. Senneff, 127.

V. Singer Manurg Co., 353.
Bcilefontaine Ry. Co. v. Hunter, 930,

932.
Bellefontalne & I. R. Co. v. Snyder,

985.
Bollinger v. Craigue, 323. 914.
Bellinglmm Bay & B. C. R. Co. v.

Strand, 3(56.
Bellows V. Pennsylvania & N. Y. Ca-
nal & R. Co.. 1005, 104.5.

V. Sackett, 779, 788.
Belo V. Fuller, .504.
Below V Robbins. 710. 737.
Belo & Co. V. Wren, 4S1.
Belton V. Baxter, 877.
Belt R. R. & Stock-Yard Co. v. Mann,
82.5.

CASES CITED.

1106

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Belts Y. Gibbons. 216.

Belyea v. Minneapolis, St. P. & S. S.

M. Ry. Co., 472.
Bement v. May, 310.
Bemis v. Central Vt R. Co.. 946.

V. Temple, 950.
Benedict v. Farlow, 707. 716.
Benett v. Peninsular & O. Ry. Co.,

1058.
Beneway v. Thorp, 504, 519.
Benfleld v. Vacuum Oil Co.. 1006.
Bengtson v. Chicaj^o. St. P.. M. & O.

Ry. Co., 1019.
Benjamin v. Holyoke St. Ry. Co., 962.

V. Shea, 134.

V. Storr, 782. 787.

V. Wheeler, 55. 773.
Benkard v. Babcock, 408.
Benner v. Atlantic Dredging Co., 59,

111. 848.
Bennett v. AUcott. 204. 452.

V. Barry, 534.

V. Bennett, 468, 471,

V. Clemence. 668.

V. Dutton, 1083.

V. Fifield, 212.

Y. Judson, 565« 560.

V. Lockwood, 742.

V. Morris, 946.

V. New York Cent. & H. R. R.
Co., 928, 983, 987.

Y. Railroad Co.. 893. 895, 995,
1002, 1006, 1018.

V. Smith, 466, 467.

V. Thompson, 692.

V. Whitney, 129.
Bennington v. Klein, 777.
Bennitt v. The Guiding Star, 1066.
Benoit V. Troy & L. R. Co.. 857.
Benson v. Baltimore Traction Co.,
889, 891. 897.

V. Goodwin, 1046.

V. Gray, 1074.

y. Remington, 452, 453.

V. Suarez, 788, 840.
Benson Mining & Smelting Co. v. Al-

ta Mining & Smelting Co., 740.
Benton v. Beattie. 46, 720. 732.

V. Boston City Hospital, 187.

V. Pratt, 551. 636.

V. St. Paul, M. & M. Ry. Co., 61G.

V. Ward, 578.

LAW OF TORTS— 70

Benz V. Wiedenhoeft, 499.
Benzing v. Steinway, 1044.
Berea Stone Co. v. Kraft. 104a
Berg V. Baldwin, 414.

V. City of Milwaukee, 874.
v. Parsons, 232.
Berger v. Jacobs, 471.

V. Minneapolis Gas-Light Co., 54,

475, 834.
V. St. Paul, M. & M. R. Co., 1005.
Bergguist v. Chandler Iron Co., 1024.
Bergmann v. Jones, 493.
Berheimer v. Manhattan R. Co., 807.
Bernar v. Dunlap, 621.
Bernhardt v. Western Pennsylvania

R. Co.. 1088.
Bernler v. Russell, 135.
Bernina, The, 981.
Bernstein v. Dry Dock, E. B. & B. R.

Co.. 1093.
Berrer v. Moorhead, 133.
Berrigan v. New York, L. E. & W.

R. Co., 1001. 1017.
Berrlnger v. Great Eastern R. Co.,

905.
Berry v. Hamill, 656.

V. Town of Wauwatosa. 174.
V. Vreeland, 401.
Berson v. Ewing, 609.
Berthon v. Cartwright, 467.
Bertie v. Beaumont, 665.

v. Flagg. 227.
Bertles v. Xunan, 463.
Berwald v. Ray, l.SO.
Beseman v. Pennsylvania R. Co.. 140,

141, 368.
Besenecker v. Sale, 333.
Besozzl V. Harris, 854.
Bess V. Railway Co., 263.
Be«t V. HoeiTner, 621.
Bethel v. OUs, 221.
Bethell v. Bethell. 565.
Betts V. Chicago, R. I. & P. Ry. Co.,
945, 1074.
V. De Vitre. 247.
Bex y. Kelse, 965.
Beyersdorf v. Sump, 607, 613.
B. F. Avery & Sons v. Meek. 1016
Bickford v. Richards, 910.
Bicknall v. Waterman, 580.
Bicknell v. Dorion, 613.
Bidder v. Bridges, 315.

1106

CASES CITED.

[Vol. 1 comprises iMiges 1-652, inclusive ; toI. 2 the residue.]

Biddle v. Bond, 713, 715.

Bidwell V. Rademacher, 505.

Biel V. Homer. 718.

Bieling v: City of Brooklyn, 177.

Bielman v. Railroad Co., 777.

Bienenstok y. Ammidown. 291. 293.

Bierer v. Hurst, 353, 357, 692.

Bigaoulette v. Paulet, 463.

Blgelow V. Hartford Bridge Co., 806.

V. Metropolitan St Ry. Co., 381.

V. Sickles, 612, 618, 624.

V. Stearns, 122.

V. West End St. R. Co., 1093.
Bigelow Co. V. Heintze, 731. 743.
Billard v. Brhart, 787.
Billings V. Breinig, 923, 929.

V. Lafferty, 118, 120.

V. Smelting Co.," 320.
Billows V. Moors, 891.
Bills V. Belknap, 129, 689.

V. New York Cent. R. Co., 1074.
Binford v. Johnston, 73, 852.
Bingham v. Rogers, 301.

V. Salene, 685.
Binks V. South Yorkshire R. Co., 186,

888.
Birch V. Conrow, 633, 634.
Blrchard v. Booth, 406, 446.
Bird V. Astcock, 718.

V. Everard, 902.

V. Holbrook, 196, 768, 892.

V. Jones, 417, 419.

V. Kleiner, 597.

V. Smith, 315.
Birdsell v. Shaliol, 342, 344.
Birge V. Gardner, 196.
Birkett v. Western Union Tel. Co.,

Birmingham Furnace & ManuTg Co.

V. Gross, 994.
Birmingham M. R. Co. v. Harris, 931.
V. Parsons, 97.
V. Wilmer, 942.
Birmingham Railway & Electric Co.

V. Allen, 201, 903.
Birnburg v. Schwab, 955.
Blsbey v. Shaw, 525.
Bischoff V. People's Ry. Co., 96 1,

1084.
Bisooe V. Great Eastern R. Co., 144,

780.
Bishop V. Baker, 602, 760.

Bishop V. Banks, 769.

T. Latimer, 523.

Y. Montague, 43.

V. Railroad Co., 73, 378, 1091.

Y. Ranney, 431.

Y. Small, 578, 580.

Y. Weber, 90&

V. Williamson, ISa
Bishop of London v. Web, 703.
BisseU V. Collhis, 689.

V. Cornell, 523.

V. Hopkins, 3(U.

V. Press Pub. Co., 532.

V. Torrey, 229.
Bittle Y. Camden & A. R. Co., 829.
Bittman y. Mize, 131.
Bixby Y. Brundige, 605.

Y. Dunlap, 449, 636, 646.

V. Parsons, 282.
Bizer y. Ottumwa Hydraulic Power

Co., 410.
Bizzell Y. Booker, 852.
Black Y. Aberdeen & W. B. R. Co.,
846.

Y. Baxendale, 1068.

Y. Black, 589, 592, 593.

Y. Goodrich Transp. Co., 305.

Y. Hunt, 496.
Blackham y. Pugh, 541.
Blackman y. Bryant, 490.

Y. Gardner Bridge, 381.
Blacknall y. Rowland, 597.
Black's Estate, In re, 157.
Blackslee Manuf'g Co. y. B. G.

Blackslee*s Sons Iron Works, 759.
Blackwell y. Landreth, 404, 548.

Y. Lynchburg & D. B. Co., 849,
967.
Blades y. Higgs, 659, 688.
Blaen Ayou Coal Co. y. McCuUoh,

57, 246, 653, 822.
Blagg Y. Sturt, 530.
Blagge Y. Ilsley, 452, 458.
Blain v. Foster, 715.
Blair y. Bai-tlett, 323.

Y. Chicago & A. R. Co., 469, 472.

Y. Deakin, 798.

Y. Erie Ry. Co., 1080.

Y. Flack, 131.

Y. Grand Rapids & I. R. Co., 817.
Blaisdell v. Leach, 40, 273.

Y. RaiU'oad, 682.

GASES crrED.

1107

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Blake v. Blackley, 222.

V. Dick, 227.

V. Ferris, 210.
' V. Great Western R. Ck)., 1058.

V. Jerome, 077.

V. Lanyon, 450.

V. Maine Cent R. Co., 1000.

V. Midland Ry. Co., 330.

V. Thirst, 243.
Blakely v. Le Due, 30.

V. Smith, 211.
Blakeman y. Blakeman, 511.
Blakemore y. Railway Co., 909.
Blakeslee y. Carroll, 538.
Blakeston's Case, 289.
Blanehard y. Baker, 755.

V. Dow, 130.

y. Ely, 379.

y. Ilsley, 454.

y. Reyburn, 781.
Blankenship v. Berry, 729.
Blann y. Crochcron, 342.
Blanton v. Dold, 937, 1016.

y. Wall, 559.
Blatt y. McBarron, 195, 891.
Blaymire y. Haley, 453.
Blazinski y. Perkins, 1013.
Blecher y. Costello, 579.
Bleil y. Street Ry. Co., 09.
Blenkiron y. Great Central Gas Con-
sumers' Co., 849.
Blesch y. Chicago & N. W. R. Co.,

693.
Blessington y. Boston, 233.
Blln y. Campbell, 19.
BUndell y. Hagan, 358.
Bliss y. Hall. 769, 774, 804.

y. New York Cent. & H. R. R. Co.,
316, 318, 320, 947.
Bliven y. Hudson R. R. Co., 1065.
Blizzard v. Hays, 621.
Block y. Ebner, 408.

V. Milwaukee St Ry. Co., 375,
864.
Blocker v. Sclioflf, 547.
Blodgett y. Boston, 177.

y. Stone, 79, 779.
Blofield y. Payne, 82.
Blondin y. Oolite Quarry Co., 996.
Bloodgood v. Ayers, 7r)8.
Bloodworth y. Gray, 509.
Bloom y. Manhattan El. Ry. Co., 471.

Bloomer y. Gray, 581, 598.
V. State, 435.

Bloomington y. Chamberlain, 391.

Blossom y. Dodd, 309.

Blount y. Grand Trunk Ry. Co., 860.

Bloyd y. St Liouis & S. F. Ry. Co.,
1041.

Blue y. Christ, 640.

Bluedorn y. Missouri Pac. R. Co., 899,
933. 937, 942, 959.

Blum y. Jones, 640.

Blumhardt y. Rohr, 506, 513.

Blundell y. Catterall, 690.

Blunk y. Atchison, T. & S. F. Ry. Co.,
624.

Blunt y. McCormick, 412.

Blyhl y. ViUage of Wateryille, 180.

Blyth y. Birmingham Water Works,
35, 811.
y. Fladgate, 293, 917.

Blythe y. Thompson, 425.
y. Topham, 88S.

Boaler y. Holder, 607, 6ia

Board Cora'rs of Jackson Co. v. Nich-
ols, 361.

Boardman y. Acer, 342.
y. Hague, 127.

Board of Chosen Freeholders of Sus-
sex Co. y. Strader, 183.

Board of Com'rs y. Creviston, 943.
v. Daily, 185.

Board of Com'rs of Boone Co. r.
Mutchler, 68, 982.

Board of Com'rs of Wabasha Co. y.
Pearson, 339.

Board of Health y. Lederer, 793.
y. Maginnis Cotton Mills, 783.
y. New York H. M. Co., 806.

Board of Health & Vital Statistics of
Hudson Co. v. New York Horse
Manure Co., 784, 809.

Board of Shelby Co. y. Scearce, 330.

Board of Trade Tel. Co. y. Bamett,
690.

Boaz y. Central R. Co., 904, 1064.
V. Tate, 418, 605.

Bocock y. Cochran, 123.

Bode y. Lee, 715.

Boden y. Demwolf, 414, 1052.

Bodger y. Nicholls, 586.

Bodley y. Reynolds, 384.

Bodwell y. Swan, 525.

1108

GASBB CITED.

[Vol. 1 comprises pages 1-652, indasiTe; toL 2 the residue.]

Boecher y. Lutz, 152, 153.

Boefer v. Sheridan, 6d8.

Boeger y. Langenberg, 418, 608.

Boehl V. Chicago. M. & St. P. Ry. Ck).,

1074.
Boelimer v. Detroit Free Press CJo.,

485, 533.
Boerth v. West Side R. Co., 885.
Boetcher y. Staples, 394, 399.
Boettger y. Scherpe & Koken Archi-
tectural Iron CJo., 1025.
Bogert y. Burkhalter, 391.
Boggess y. Chesapeake & O. Ry. Co.,
1079.

y. Metropolitan St. Ry. Co., 403,
909.
Bogk y. Gassert, 548.
Boban y. Port Jeryis (^as Light Co.,
749, 767, 780, 787, 790, 849.

y. St. Paul & D. R. Co.. 996.
Bohen y. City of Waseca, 837.
Bohn y. Hatch, 683.

y. Kerable, 562.
Bohn Manufg Co. y. Erickson, 1004,
1014.

y. Hollis, 641, 649, 651.
Bohrbough y. Barbour County Court,

69.
Bokee v. Walker, 575.
Bolan y. Williamson, 138.
Bolch y. Smith, 574. 891-893, 895.
Bolds y. Woods. 581.
Boles y. Pinkerton, 443.
Bolingbroke y. Board, 252-254.

y. Swhidon. 250.
Boliyar Manuf'g Co. y. Nepoiiset

Manuf'g Co., 804.
Boiling y. Kirby, 717. 728.

y. Whittle, 677.
Bollman y. Warner, :\7A.
Bolman y. Oyerall, 472.
Bolt y. Hauser, 546.
Bolton y. Deane. 477.

y. McShane, 357.

y. Miller, 452. 460.
Bonaker y. Evans, 167.
Bonaparte y. Clagett, 720, 727.
Bonas y. Steffens, 466.
Bonce y. Dubuque St. Ry. Co., 1085.
Bond y. Chnpin, 608.

V. Evansville & T. H. R. Co., 899.

y. Mitchell. 707.

Bond y. Smith, 943.

y. Ward, 132.
Bonino y. Caledonio, 445.
Bonnard y. Perryman, 353.
Bonnell y. Smith, 56, 772.
Bonnelli y. Bowen, 694.
Bonner y. Bryant. 242.

y. Wirth, 339.
Bonney y. Smith, 718.
Bonomi y. Backhouse. 101, 105, 751.
Boobier y. Boobier, 723.
Boody y. Keating. 12.
Boogher y. Hough. 618.

y. Knapp, 533.
Booher y. Goldsborough, 565.
Booker y. State, 503.
Boom y. Utica, 770.
Boone y. Knox, 667.
Boor man y. Adams Exp. Co., 305.

y. Brown, 6. 26.
Booscy y. Wood, 521.
Booth y. Kurrus, 119, 423, 424.

V. Lloyd, 136.

y. Merriam, 227.

y. Mister, 266.

y. Northrop, 559.

y. RaUroad Co., 68, 763, 792, 848.

y. Ratte, 213.

y. Sherwood, 667, 672.
Boots V. Washburn, 129.
Borchardt y. Boom Co., 67.
Borgher y. Life Ass*n, 169,
Bork y. Martin, 733.
Borland y. Stokes, 713.
Born y. Loflin & R. Powder Co., 804.

y. Rosenow, 518.
Borough of Susquehanna Depot y.

Simmons, 182.
Bosch y. Railroad Co., 77.
Boscowitz y. Adams Exp. Co., 303.
Boson y. Sand ford, 250.
Bostick y. Rutherford, 621.
Boston, The, 1069.

y. Neat, 669.

V. Simmons, 638, 639.
Boston Belting Co. y. City of Boston,

144, 772.
Boston, C. & M. R. y. State, 330.
Boston Diatitc Co. y. Florence Manuf'g

Co., 353.
Boston Ferrule Co. y. Hills, 774, 788.
Boston R. R. Corp. y. Danna, 11.

GASISS CITED.

1109

[Vol. 1 compriseB pages 1-052, inclusive; voL 2 the residue.]

Boston & A. R. Co. v. Carney, 848.
Boston & M. R. Co. v. Small, 128.
Bostwick V. Baltimore & O. R. Co., 66.

V. Lewis, 127.
Bosworth V. Swansy, 194.
Bott V. Pratt, 100, 920. 024, 926.
Bottoms y. Seaboard & R. R. Co., 987.
Boucber y. Lawson, 250, 251.
Bonknight y. Charlotte, C. & A. R.

Co., 941,
Boulden y. Esley Organ Co., 655.
Boulester y. Parsons, 962.
Boulier v. Macauley, 449, 936.
Boulter y: Qark. 203.
Boulton y. Shields, 553.
Bourke y. Warren, 485.
Bourn's Case, 485.
Boutte y. Emmer, 424.
Boyard y. Kettering, 220.
Boyee y. Danville, 72, 370.
Bowden y. Lewis, 802.
Bowdltch y. Balchin, 427.

y. City of Boston, 149. 174.
Bowdle y. Railway Co., 1090.
Howe y. Hunking, 227.
Bowen y. Fenner, 728.

V. Hall, 447, 449. \>35.

y. Matheson, 643, 649.

V. Wendt. 757, 793.
Bower y. Fenn, 564.

y. Hill, 82.

y. Peate, 235.
Bowers y. Connecticut Riyer R. Co.,
954, 995. 1045.

y. Horen, 154.

y. Pittsburgh, Ft W. & C. R. R.,
1079.

y. Thomas, 596.
Bowes y. City. 69.

Bowie y. Greenville St. Ry. Co.. 1094.
Bowler v. O'Connell, 242.
Bowlin y. Nye, 718.
Bowlsby y. Speer, 760. 762.
Bowman v. Brown. 618.

y. Carithers, 591, 593.

V. Chicago, St. P. & K. C. Uy. Co.,
354.

V. First Nat. Bank. 132.

y. Teall, 1062.

v. Woods, 912.
Bowser y. Cox, 734.
Bowyer y. Cook. 411. 6.58.

Box y. Jubb, 836.
Boyee y. Anderson, 1059.

V. Bayliffe, 380.

y. Brock way, 50.

y. California Stage Co., 1085.
Boyd V. Brown, 379.

V. Burkett, 887, 965, 979.

V. Byrd, 452.

v. Conklin, 761.

y. Insurance Patrol, 126.

V. Mendenhall, 620, 627.

V. Teague, 131.
Boyden v. Burke, 389.
Boyd's Ex'rs y. Browne, 575.
Boyer, Appeal of, 739.

y. Bishop, 13.

y. St. Paul City Ry. Co., 953.
Boykin v. Maddrey, 417.
Boylan y. Brown, 870.
Boyle V. Brandon, 380, 458.

y. Case, 434.
Boynton v. Rees, 66.

y. ^haw Stocking Co., 550.
Boyson y. Thorn, 56, 636.
Brabham y. Supervisors, 183.
Bracegirdle y. Oford, 393.
Bracey y. Carter, 915.
Bracken v. Cooper, 733.

y. RushviUe & V. G. R. Co., 685.
Brackett v. Griswold, 591, 640.

y. Lubke, 230.
Bracy v. Kibbe, 454.
Bradburn y. Great Eastern R. Co., 400.
Bradbury y. Haines, 599.

y. Kingston Coal Co., 1011.
Bradford. Ex parte, 207.

y. Boley, 380.

y. Boston & M. R. Co.» 893.

y. Manley, 588.

y. NeiU, 601.
Bradlaugh v. Clarke, 98.

y. Gorsett, 529.
Bradley y. Andrews. 851.

y. Borin, 391, 629.

v. Copley, 710.

y. Fisher, 119-121. 124.

y. Fuller, 88. 371.

y. Pierson, 646, 650.

V. Shaffer, 461.
Bradner y. Faulkner, 631.
Bradshaw v. Lancashire Ry. Co., 329,
406.

1110

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusiTe; vol. 2 the residue.]

Bradshaw v. Van Winkle, 164.
Bradshaw's Adm'r v. Louisville & N.

R. Co., 1019.
Bradstreet v. Everson, 252, 285.
Bradstreet Co. v. Gill, 387, 497, 541.
Bradwell v. Pittsburgh & W. E. Pass.

Ry. Co., 873, 884, 972.
Brady v. Detroit Steel & Spring Co.,
772.

V. Finn, 562, 581, 597.

V. Northwestern Ins. Co., 78.

V. Old Colony R. Co., 937.

V. Weeks, 774.

V. Whitney, 342. 710.
Braem v. Bank, 88.
Bragg V. Laraway, 366, 690
Brain v. Marfell, 758.
Brainard v. Kuapp, 273.
Braithwaite v. Aiken, 28.

v. Skinner, 98. 348.
Brakken y. Minneapolis & St. L. Ry.

Co., 411. 412.
Bramniell v. E]astern Kentucky Ry.

Co., 202.
Branaman v. Hinkle, 538.
Branch v. Wilmington & W. Ry. Co.,

1068.
Brandreth v. Lance. 353.
Branfoot, The William, 939.
Brann v. Chicago, R. I. & P. R. Co.,

1007, 1008.
Branner v. Stormont, 914.
Brannock v. Boulden, 210, 640.

V. Elmore, 228, 232, 234, 849,920,
925.
Brass v. Maitland, 908.
Brnunn v. Keally. 314.
Bray v. Gunn, 48.
Brazier v. Banning, 404.
Brazil V. Moran, 217, 221.

V. Peterson, 204, 277.
Bream v. Brown. 334.
Breckwoldt v. Morris. 674.
Bredin v. Bredin, 640.
Breedlove v. Bundy, 639.
Breen v. Field, 126, 281. 280.
Breese v. United States Tel. Co.. 302.
Brehm v. Great Western R. Co., 930,

1085.
Brehme v. Dinsmore, 305.
Breig v. Chicago, W. & M. Ry. Co.,
1027.

Breitenberger v. Schmidt, 638.

Brember v. Jones, 878.

Brendlinger v. New Hanover Tp., 827.

Brennan v. Schreiner, 234, 230, 848.

Brent v. Kimball, 152, 367.

Brentman v. Note. 554.

Breon v. Henkle, 457.

Breslin v. Peck, 343.

Bretherton v. Wood, 903, 1059.

Brett V. Watson, 475.

Brettum v. Anthony, 510.

Brewer v. Boston, C. & F. R. Co., 144.

V. Jacobs, 619.

V. New York, L. E. & W. R. Co.,
303, 309.

V. Sparrow, 296.

V. W^eakley, 537.
Brewing Co. v. Mielenz, 952.
Brewster v. Silliman, 721.

V. Van Liew. 360.

V. Warner, 670.
Brezee v. Powei-s. 765, 955.
Brice v. Bauer, 857.
Brick V. Bosworth, 960.

V. Rochester, N. Y. & P. R. Co.,
1041.
Brickell v. New York Cent. & H. R.

R. Co.. 983.
Bricker v. Philadelphia & R. R. Co.,

890.
Bridge v. Grand Junction Ry. Co.,

980.
Bridges v. Hawkesworth, 713.

v. North London R. Co., 942, 957,
971.

V. Purcell, 684.
Bridgland v. Sliapler, 98.
Brlegel v. City of Philadelphia, 179.
Brierly v. Kendall. 737.
Brigg V. Oliver, 939.
Briggs V. Evans, 452.

V. Garrett, 478, ."^0, 535.

V. Klosse, 752.

V. Lightboats, 111.

V. Minneapolis St. Ry. Co., 72, 7a

V. Newport News & M. V. Co.,
1005.

V. New York Cent. R, Co., 726,
^5.

V. New York Cent. & H. R. R. Co.,
930.

V. Taylor, 913.

CASES CITED.

1111

[Vol. 1 comprises pages 1-652, inclasaye; vol. 2 the residue.]

Briggs Y. Thompson, 665.

Brigham y. Bussey, 134.

Bright V. Barnett & Record Co., 895,

1024.
Brightman y. Inhabitants of Bristol,

802.
Brill y. Eddy, 242, 263.

y. Flagler, 749. 767.
Brlnekerhoff y. Starkins, 659.
Brind y. Dale. 1057.
Brinkley y. Piatt, 639, 640.
Brinsmead y. Harrison, 342, 344, 845.
Brissac V. Lawrence, 138.
Bristol y. Braidwood, 564.

y. Burt, 711. 717.
Bristol & E. Ry. Co. y. Collins, 1072.
Bristow y. Eastman, 159.
British Mutual Banking Co. y. Cham-
wood Forest Ry. Co., 254, 269.
British & A. Mortg. Co. y. TlbbaUs,

285.
Broadbent v. Ramsbotham, 758, 761,

762.
Broadwell v. City of Kansas, 178.
Brobst y. Ruff, 623.
Broburg v. City of Des Moines, 178.
Brock y. Dole, 353.
y. Stimson, 128.
Broder y. Salllard, 761, 775.
Broderick y. Depot Co., 261.

y. James, 101« 483.
Brokaw y. New Jersey R. & Transp.

Co., 288.
Broniage y. Prosser, 512, 513, 518,

555.
Bromley y. Birmingham Mineral R.
Co., 942.
y. Coxwell, 730.
y. Wallace, 465.
Bronde y. Hayen. 4.
Bronson y. Bruce, 537.

y. Forty-Second St. Ry. Co., 403.
Brook y. Rawl, 553.
Brooke y. Bank, 380.
Brooker y. Coffin, 503.
Brookfield y. Brown, 666.
Brooklyn y. Railway Co., 283.
Brooks y. Bradford, 617, 622, 627.
y. Curtis, 235.
y. Harison, 503.
V. Hart, 878.
y. Haslam, 333.

Brooks y. Kings County El. R. Co.,
837.

y. Mangan, 123. 426.

y. Matthews, 596.

y. Northern Pac. R. Co., 1017.

V. Olmstead. 654.

y. Riding, 565.

V. Rogers, 227, 296, 709, 722,738.
740.

y. St. John, 124.

y. Schwerln, 400, 472.

y. State, 914.

y. Stuart, 345.
Brookyille & C. Turnpike Co. y.

Pumphrey, 185.
Broomfield y. Snoke, 496.
Broschart y. Tuttle, 936.
Brosde y. Sanderson, 400.
Brosnan y. Sweetser, 894.
Brothers y. Morris, 55, 773.
Brotherton y. Goldman. 738.
Broughton y. Jackson, 429.

y. McGrew. 508, 513, 543.
Brouillette y. Connecticut Riyer R.

Co., 954.
Broult y. Hanson, 880.
Brounstein y. Sahlein, 609.

y. Wile, 025.
Broussard y. Railway Co., 379.
Brow y. Railroad Co.. 229. 244.
Brower y. Fisher, 154.
Brown v. Allen, 213.

y. Barnes, 937.

y. Bowen, 754.

y. Boyce, 708.

V. Brooks, 151.

y. Buffalo & S. L. R. R. Co., 926.

y. Burlington, C. R. & N. R. Co.,
954.

y. Cambridge, 342.

y. Carpenter, 800.

y. Chadsey, 422. 423, 613. 630.
631.

y. Chapman, 423. 606. 628.

y. Chicago, M. & St. P. R. Co.,
375-^^77, 382, 958.

y. City of Cape Girardeau, 608,
609.

y. Collins, 50, 880.

V. Congress & B. St. Ry. Co.. 810,
935.

T. Cunningham, 755.

1112

GASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; voL 2 the residue.]

Brown v. De Groff, 802.
V. Durham, 387, 497.
V. Ela, 72o.
7. French, 875.
V. Glenn, 075.

V. Hannibal & St. J. R. Co., 195.
V. Hawkes, 615, 020.
V. Hitchcock. 900.
V. Howard, 132, 150. 282.
V. Kendall, 52. 53, oa
7. Kingsley, 458.
V. Klrkbilde, 320.
V, Lakeman, 611.
V. Laurens Co., 69.
V. Leach, 580, 599.
V. Leclerc, 859.
V. Lynn, 198.
V. McLeish, 2;i3.
V. Marshall. 58. 73, 907. 978.
V. Master, 617.
y. Massachusetts. 522.
V. Miller, 738.
y. Minneapolis & SL L. Ry. Co.,

1039, 1043.
V. Morris, 625.
V. Mosher, 132.
V. Perkins, 663. 800.
y. Postal Tel. Co., 302, 304.
V. Railroad Co., 72, 73, 142, 143,

197.
V. Ramsay, 452.
V. Randall, 611.
y. Rice, 569.
V. Scarboro, 961.
V. Seymour, 404.
V. Shaw. 712. 713.
y, Sherer, 987.
V. South Kennebec Agricultural

Soc., 187.
V. Stackhouse, 676.
V. State, 414.
V. Sullivan. 1034.
V. Susquehanna Boom Co., 927.
V. Swlnford, 446.
V. Vannaman. 506. 540. 542.
V. Vinahaven, 188.
V. Ware, 712.
V. Watson, 368.

V. Winona & St. P. R. Co., 1043.
V. Winona & S. W. Ry. Co., 762.
V. Woo ton, 341, 342.
V. Wright, 45.

Browne ▼. Dawson. 657, 688.

V. Providence, H. & P. R. Co..
678.
Brownell v. Durkee, 443.
Browning v. Cover. 733.

V. Goodrich Transp. Co.. 305.

V. Owen Co., 180.

V. Wabash Western Ry. Co., 1052.
Brownlie v. Campbell, 565.
Brownlow v. Metropolitan Board of

Works, 145.
Brown Paper Co. v. Dean. 287.
Brown's Adm*r v. Town of Guyan-

dotte, 182.
Bruce v. Bruce, 464.

V. Reed. 260.

V. Tyler, 629.
Bruch V. Carter, 654.
Brufr V. Mall, 908.
Brumbridge v. Massey, 917,
Brummlt v. Furness. 842.
Brunell v. Cook, 352.
Brunker y. Cummins. 944.
Brunner v. American Tel. & Tel. Co.,
265, 279.

V. Downs, 119, 424.
Brunsden v. Humphrey, 322, 406.
Brunswick-Balke CoUender Co. v.

Rees, 224.
Brunswig v. White, 332.
Brusch V. St. Paul City Ry. Co., 362,

1090.
Brush V. Prosser, 517.
Brushaber v. Stegemann, 42L
Bryan v. Bates, 428.
Bryant v. Carpet Co., 213.

v. Central Vt R. Co.. 946.

V. Chicago, St. P., M. & O. Ry.
Co., 1081.

V. Herbert, 29.

V. Inhabitants of Westbrook, 182.

V. Jackson, 157. 482.

V. I-.efever, 750.

V. Rich, 172. 262. 263.

V. Town of Randolph, 129.
Brymer v. Southern Pac. Co., 1012.
Bryne v. Boadle, 838.
Bryom v. Chapin, 704.
Bryson v. St. Helen. 323.
Buchanan v. Barnes. 643.

V. Kerr, 643.

v. Railway Co.. 389.

CASES CITED.

1113

[Vol. 1 comprises pages 1-052, inclusive; vol. 2 the residue.]

Buchanan y. Town of Barre, 184.
Bueher v. Cheshire R. Co.. 97.

V. Fitzburg R. Co.. IIM.
Buchtella v. Stepanek, 100. 505.
Buck V. Power Co., 805, 987.

V. Railroad Co., 301, 462, 1000,
1001.
Buckbee v. Brown, 180.
Buckel Y. Suss. 469.
Buckingham v. Elliot, 800.

V, Plymouth Water Co., 740, 907.
Buckland y. Johnson, 842, 340.
Buckley y. Cunningham, 227.

V. Gross. 190. 427. 712. 715.

V. Gutta-Percha & Rubber Man-
ufg Co.. 1004.

T. Old Colony R. Co.. 1093.
Buckmaster y. Great Eastern Ry. Co.,

1088.
Buckner y. Spaulding, 524.
Buckstaff y. Viall, 485, 494, 538.
Budd y. United Carriage Co., 10^.
Buddenberg y. Charles P. Choteau

Transp. Co., 873, 972.
Buddlngton y. Shearer, 797.

V. Smith, 150.
Budict y. Missouri Pac. Ry. Co., 993.
Buel y. New York Cent. R. Co., 907.
BueU y. Chapin, 283.
Buelow V. Chicago, St. P. & K. C. Ry.

Co., 904.
Buenemann y, St Paul, M. & M, Ry.

Co., 1087.
Buffalo I^ubricating Oil Co. v. Stand-
ard Oil Co., 109, 039, 050.
Buffum y. Harris, 758.
Buford y. Caldwell, 509.
Buhl y. Fort Street Union Depot Co.,

80.
Buker y. Bowden, 070.
Bull y. Knowlton, 72o.
Bnllard v. Harrison, 150, 078.

y. Moor, 47.

y. MuUigan, 102.
Bullis V. Noble, 505.
Bullitt y. Farrar, 504, 571.
Bullock y. Babcock, 3a, 100, 43a

y. Raih-oad Co., 831.
Bulpit y. Matthews, 077.
Bunch y. Kennington, 350.
Bunderson y. Railroad Co., 700, 702.
Bundschuh y. Mayer, 220, 850.

Bundy y. Maginess, 11.
Bunnell y. Greathead, 405, 400.

y. St Paul, M. & M. Ry. Co., 999.

V. Stem, 902.
Bunten y. Chicago, R. I. & P. R. Co.,

330, 792.
Bunting y. Hogsett, 982.
Burbank y. Bethel Steam Mill Co.,
834^ 920.

y. Ross, 102.
Burcky y. Town of Lake, 144.
Burdett y. Abbott 110. 074, 075.
Burdick y. Cheadle, 909.
Burdict y. Missouri Pac. Ry. Co., 104.
Burdltt y. Hunt, 735.

V. Swenson, 783, 807.
Burford y. Wlble, 523.
Burg y. Chicago, R. L & P. Ry. Co.,

100, 880.
Burger y. Missouri Pac. Ry. Co., 800.

y. St. Louis, K. & N. W. R. Co.,
829, 970.
Burgess y. Bragaw, 209.

y. Graffam, 002.

y. Gray, 233.

y. Isherwood, 729.

V. Seligman, 97.
Burgin y. Raplee, 324.

V. Richmond & D. R. Co., 904.
Burkam y. Railway Co., 791, 795.
Burke, In re, 119.

y. Daley, 855.

y. De Castro & D. S. R. Co., 1034.

y. Dillingham, 207.

V. Melyin, 445.

y. Railroad Co., 40, 270, 570, 950,
1034.

y. Smith, 773.

V. Witherbee, 1010.
BurHett y. Griffith, 553.
Burley y. Russell, 104.
vBurling y. Read, 070, 088, 800.
Burlington y. Schwarzman, 81.
Burlington Gaslight Co. v. Burling-
ton, C. R. & N. Ry. Co., 089.
Burlington & M. R. R. Co. y. Wendt,
020.

y. Westoyer, 905.
Burmah Trading Corp. y. Mirza Ma-
homed Aally Sherazee, 739.
Burnap y. Albert 009.

V. Marsh, 280.

1114

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Bumard y. Haggis, 163.
Burnell ▼. West Side R. Co., 1016.
Burnes v. Ward, 888.
Burnett y. Bealmear, 352.

V. Gentry, 132.

V. Tak, 551, 553.
Burnham v. Cape Vincent Seed CJo.,
732.

y, Jackson, 912.

V. Mori'issey, 115.

V. Seaverns, IGO.

V. Stevens, 123.

V. Stone, 331.

V. \yebster, 472.
Burulngham v. Rochester City & B.

R. Co., 1089.
Bui'nley v. Cook, 692.
Burns v. Dockray, 559, 569, 575, 577.

V. Jordan, 368.

V. Kirkpatrick, 447, 464, 682.

T. Ocean S. S. Co., 1016.

▼. Pethcal, 281.

V. Sennett, 948.
Buinside v. Twitchell, 717.
Buron v. Denman, 110, 127, 205.
BuiT V. Wilson, 597.
BurriU V. City of Augusta, 174.

V. Eddy, 1035.
Burroughes v. Bayne, 655, 706, 726,

728, 734, 737.
Burroughs v. Eastman, 422.

V. Housatonlc R. Co., 769, 835.

V. Norwich & W. R. Co., 1072.

V. Pacific Guano Co., 596.

V. Saterlee, 759.
Burrow v. President, 100.
Burrowes v. Lock, 568, 570.
Burrows v. March Gas & Coke Co.,
74, 850.

V. Railway Co., 957.
Burt V. Advertiser Newspaper Co.,
474, 491, 537, 547.

T. Boston, 174.

V. Bowles, 581, 583.

V. Douglas Co. St. Ry. Co., 1084.

V. Dutcher, 741.

v. McBain, 386, 470, 497.
Burtch v. Nickerson, 551.
Burtchell v. Hickisson, 891,
Burton v. Burton, 503.

V. Davis, 839.

V. Fulton, 118, 639.

Burton v. McClellan, 149.

v. O'Niell, 505, 615.

V. Scherpf, 683.

v. Smith, 841.

V. Syracuse, 176.
Burwell v. Vance Co. Com'rs, 804, 806w
Busch v. Wilcox, 271. 575.

v. Codd, 562, 563. 578.
Bush V. Bamett, 1084.

V. Bralnard, 106, 67a

V. Prosser, 400.

V. Sprague, 638.

V. Steinman, 232, 236.
Bushel V. Miller, 708.
Bussey v. Donaldson, 360.
Bussian Y. Milwaukee, L. S. & W. Ry.

Co., 317, 319.
Busteed v. Parsons, 422.
Buster v. Newkirk, 659.
Busterud v. Farrington, 571, 579, 600.
Butcher v. Butcher, 672, 686, 688.

V. Providence Gas Co., 850.
Butchers' Union Slaughter-House &
Live Stock Landing Co. y. Crescent
City Live Stock Landing & Slaugh-
ter-House Co., 608.
Butler V. Ashworth, 129.

V. Jones, 728.

V. Kent, 130.

V. McLellan, 150.

V. Potter, 424.

V. Railroad Co., 945, 1055.

V. Regents, 318.

V. Richmond & D. R. Co., 318, 320.

V. St. Paul & D. R. Co., 904.

V. Town of Malvern, 868.

v. Watkins, 169.

v. Wildman, 78.

v. Wright, 404.
Butman v. James, 357.
Butner v. Western Union Tel. Co., 900.
Butterfield v. Ashley, 449.

V. Forrester, 820, 973, 976, 977.

v. Oppenheimer, 674.
Buttman v. Dennett, 902.
Button v. Chicago, M. & St. P. R. Co.,
241.

Buttons V. Hudson River R. Co., 943.

Buttrick v. Lowell, 45.

Butts V. Phelps, 283.

Butz V. Ihrie, 754.

Buzzell V. Emerton, 425, 426.

CASES CITED.

1115

[Vol. 1 comprises pages 1-652, inclusire; vol. 2 the residue.]

Buzzell V. Laconia Manuf*g Co., 1008,

1044.
Byam v. Collins, 513, 543.
Byard v. Holmes, 5S3.
Byers v. Nashville, C. & St. L. Ry.

Co., 315.
Byford v. GIrton, 221, 222, 615.
Byington v. Simpson, 251.
Byne v. Hatcher, 47.

V. Moore, 627.
Byrd v. Hudson, 518.
Byrket y. Monohon, 513.
Byrne v. Boadle. 837, 939.

V. Kansas City, Ft. S. & M. R. Co.,

244, 860.
y. Minneapolis & St L. R. Co.,

413.
V. New York Cent & H. R. R.

Co., 890.
▼. Stout, 730.
V. Wilson, 78.
Bywell Castle, The, 875.

Cabell Y. Arnold, 430.

Cabot Y. Christie, 564, 565.

Cadden y. American Steel-Barge Co.,

994, 1044, 1046.
Cade Y. jTocum, 608.
Cadwallader y. Louisville, N. A. & C.

Ry. Co., 930, 963.
Cady Y. Case, 602.

Cahill Y. Cincinnati, N. O. & T. P. Ry.
Co., 892, 983.
Y. Eastman, 475, 771, 834, 838, 840.
Y. Lay ton, 891.
Cahn Y. Hewsey, 705.

Y. Western Union Tel. Co., 899,
900.
Cahoon v. Chicago & N. W. Ry. Co.,

828, 829.
Cain Y. Cain, 655.
Y. Flood, 688.
Y. Railroad Co., 262.
Caimcross v. Village of Pewaukee, GO,

747.
Cairns y. Bleeker, 730.
Cairo & St. L. R. Co. y. Woolsey, 144.
Calder v. Bull, 167.
Y. Halket, 123.

Caldwell y. Boone, 174.

Y. Central Park, N. & B. R. R. Co.,
367, 388.

Y. Copeland, 753.

v. P"an-ell, 202.

Y. Fenwlck, 655.

Y. Hunter, 915, 916.

Y. New Jersey Steamboat Co.,
1085, 1089.

Y. Raymond, 511.

Y. Richmond & D. R. Co., 1093.

V. Robinson, 354.

Y. Slade, 223. 224, 838.

Y. Walters, ^^8^.

Y. Ward. 699, 705.
Caledonian Ry. Co. v. OgilYy, 786.

Y. Walker's Trustees, 785.
Calhoun y. Gulf, C. & S. F. R. Co.,

923.
Calkmg Y. Baldwin, 349.
Calkins v. Barger, 843.

v. Summer, 5'J8.
Call v. Buttrick, 779.
Callaham y. Railway, 237.
Callahan y. Ingram, 392, 482, 512, 518,
529, 539, 544, 545, 549.

Y. Loughran, 227.

Y. Searles, 423.

Y. Warne, 853, 943, 952.
Callan v. Wilson, 642.
Callender y. Marsh, 89.
Calumet Iron & Steel Co. y. Martin,

978.
Calvert y. Rice, 699, 701, 706.
Calye's Case, 902.

Cambies v. Third Ave. R. Co., 861.
Camden & A. R. Co. v. Baldauf, 309,

1077.
Cameron y. Bryan, 392, 400, 857.

Y. New York Cent. & H. R. R.
Co., 999.

Y. Nystrom, 994, 1034.

Y. Pacific Exp. Co., 279.

Y. Union Trunk Line, 955.

v. Vandegriff, 848.
Camody v. Portlock, 720.
Camp V. Whitman, 150.
Campbell, Appeal of, 702.

Y. Alston, 362, 1093.

Y. Carter, 466.

V. Chicago, R. I. & P. R. Co., 1028.

Y. Cook, 300, 1038, 1041, iaj6.

1116

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Campbell v. Cooper, 450.

V. Cornelius, 401.

y. Goodwin, 955.

V. Harris, 1034.

V. Missouri, K. & T. Ry. Co., 508.

V. Missouri Pac, R. Co., 845, 927,
941.

V. Morse, 10l>3.

V. Northern Pac. R. Co., 277, 914.

V. Perkins, 159.

V. Perry, 471.

V. Portland Sugar Co., 290, 894,
895.

y. Pullman Palace Car Co., 262.

V. Race, 150, 678.

V. Seaman, 749, 767, 769, 775, 776,
778, 804.

V. Spottiswoode, 534, 53G, 537.

V. Stakes, 159, 163.

V. Union Ry. Co. of New York
City, 883.

V. Warner, 947.

V. Wing, 389.

V. Wright, 725.
rampbell Printing-Press & Manuf'g

Co. V. Manhattan Ry. Co., 344.
Campbell & Zell Co. v. Roediger, 998,

1051.
Camp Point Manufg Co. v. Ballou,

1010.
Canadian Pac. R. Co. v. Chalifoux,
1089.

V. Johnston, 1048.
Canal Co. v. Lee, 143.
Candee v. Deere. 147.

V. Pennsylvania R. Co., 1071.
CandiflP V, Railway Co., 277.
Candy v. Globe Rubber Co., 169.
Canfield v. Gresham, 116.
Cannam v. Farmer, 3(>4.
Canning v. Williamstown, 368.
Cannon v. Barry, 097.

V. Windsor, 100.
Canot V. Hughes, 735.
Canton Cotton Warehouse Co. v. Potts,

787, 805.
Canton Surgical & Dental Chair Co.

V. McLain, 507.
Cantwell v. Pnclflc Exp. Co., 1069.
Cape V. Scott, 677.
Capehart v. Granite Mills, 1006.

y. Seaboard & R. R. Co., 309.

Capel V. Child. 167.

y. Lyons, 202. 682.
Capell V. Powell, 217.
Capen v. Foster, 135.
Capital & Counties Bank v. Henty,

498, 509. 513. 555.
Card V. Case, 866.

V. Eddy, 942, 1039. 10i5,

V. New York & H. R. Co.. 1083.
Carder y. Forehand, 460.
Cardlval v. Smith. 611.
Carew y. Rutherford. 450. 643. 645,

649.
Carey y. Berkshire Ry.Co., 327, 328.

V. Rae, 678.

y. Sheets. 608. 631.
Car Float, Na 16, The, 15, 1044.
Cark y. Foot. 842.
Carl y. The Sheboygan & F. du L. Ry.

Co., 412.
Carleton y. Akron Sewer Pipe Co.,
426.

y. Haywood, 217. 221. 222.

y. Redington, 682, 683.

y. Taylor. 632.
Carli y. Union Depot, etc., Co., 394,

694.
Carlslake y. Mapledoram. 509.
Carlson y. Minnesota Tribune Co.,

485.
Carlyon y. Lovering, 91.
Carman y. Steubenville & I. By. Co.,

143. 212. 236. 243.
Carmichael y. Dolen. 438.
Carney y. Brome, 363.

y. Hadley, 357, 358.
Carpenter y. American Bldg. & Loan
Ass'n, 721.

V. Blake. 912. 913.

V. Cook, 90.

y. Corinth, 946.

V. Gold, 691.

V. McDayitt, 970.

y. Scott, 718.

y. Willey, 482. 540.

y. Wright, 562, 596.
Cai*pentier v. Gardiner, 668L

V. Mendenhall, 732.
Carpue y. London & B. R. Co., 1058,

1084.
Carr v. Clarke, 452.

y. Clough, 727.

CASES CITED.

1117

[Vol. 1 comprisefl pages 1-652, inclusAre; vol. 2 the residue.]

Carr v. Duckett, 553.

y. Easton, 471, 472.

V. Hood, 534, r>36.

V. Northern I-^iberties, 179.

V. State, 437.

V. U. S., 111.
CJarraher v. San Francisco Bridge

Co., 828. 829.
Carratt v. Morley, 423, G05.
Carraw v. Ghapotel, 221.
Carrlco v. West Virginia CJent. & P.

Ry. Co., 235, 236, 071, 972, 1083.
Carrington v. Lentz« 701.

V. Louisville & N. R. Co., 961.

V. Taylor, 767.
Carroll v. Bird, 543.

y. Minnesota Val. R. Co., 823, 956.

V. Staten Island R. Co., 194.

V. Western Union Tel. Co., 994.

V. Wisconsin Cent. R. Co., 777,
790.
(Barron v. Clark, 390.
Carskaddon v. Mills. 887.
Carson v. Dessau, 422.

V. Electric Light & Power Co.,
354.

y. Leathurs, 237.

V. Smith, 687.
Carstalrs v. Taylor, 834, 836, 866.
Carsten v. Northern Pac. R. Co., 380.
Carter v. Allen. 128. 130.

y. Berlin Mills, ^1.

V. City of Rahway, 182.

V. Du Pre, 741.

y. Glass, 559.

y. Harden, 562.

y. Harlan, 683. 684.

y. Harrison, 135.

y. Howe Mach. Co.. 169.

y. Lehman, 709.

V. Oil Co., 963.

y. Railroad Co.. 192. 265. 382.

V. Towne. 75. 78. 852.

y. Wallace, 84.
C^artwright v. Elliott, 616.

• y. Gray, 769.
Cary y. Holt, 669.
Case y. Ayers. 5(58.

y. Cleveland, C. C. & St L. Ry.
Co.. 307.

y. Hart, 718.

y. Hobart, 842.

Case V. Mark, 656.

y. Mlnot, 227, 794.

y. New York Cent. & H. R. R.
Co., 920.
Casebeer v. Mowry, 779.
Casement v. Brown, 230, 886.
Casey y. Cincinnati Typographical
Union No. 3, 640, 6i9.

y. City of Fitchburg, 955.

y. Hanrick, 633.

v. Hulgan, 519.

V. New York Cent. & H. R. R.
Co., 882.
Cashill v. Wright. 817.
Cashman v. Chase. 1054.
Caspar y. Prosdame, 436, 446.
Cass y. Boston & L. R. Co., 901.

y. New Orleans Times, 488.

y. Pennsylvania Co.. 337.
Cassady y. Magher, 166.
Cassidy y. Atlantic Ave. R. Co., 1090.

y. Brooklyn Daily Eagle, 498.
Gassier y. Fales, 604.
Cassin y. Delaney, 218, 221.
Castenholz y. Heller. 596.
Castle y. Com Exch. Bank, 726.

y. Duryee, 50. 852.

y. Houston, 522.

y. Smith, 745, 797.
Castrique v. Behrens, 606, 607, 610,
63a

y. Imrie, 322.
Castro v. De Uriarte, 418.
Catawissa R. Co. y. Armstrong, 1033,

1035, 1037.
Gate v. Gate. 57. 376. 654, 663, 682.
Gatlett v. Young, 242, 961.
Gatlin v. Valentine, 767, 769.
Gatterall y. Kenyon, 726.
Gatteris y. Cowper, 669.
Cattle y. Stockton Waterworks Co.,

373, 382, 556. 635, 636, 835.
Cattlin y. Hills, 980.
Catts v. Phalen. 161, 191.
Caughey v. Smith, 450.
Cauley v. Pittsburgh, C. & St. L. Ry.

Co., 985.
Caulfleld y. Bullock, 135.
Cavanagh y. Dinsmore, 278.

y. City of Boston. t>63.

y. Durgln, 693.
Caveny v. Neely. 1089.

ins

GASES CITED.

[Vol. 1 comprises pages 1-652, IndusiYe; toI. 2 the residae.]

CJaverly v. McOwens, 909.

CawfLeld v. Asheville St By. Co.,

1090.
Cayford v. Wilbur, 911.
Cayzer v. Taylor, 68, 817, 1006.
Gazneau v. Fitchburg R. Co., 964,

1088.
Cedar Lake Hotel Co. t. Cedar Creek
Hydraulic Co., 691.
v. Cedar Lake Hydraulic Co., 336.
Center v. Finney, 53.
Central Ohio R. Co. v. Lawrence, 919.
Central Pass. Ry. Co. v. Chatterson,

393, 955.
Central R. Co. v. Brewer, 168, 172,
617.
V. Coleman, 862. 955.
V. Combs, 1072.
V. De Bray, 948.
V. Moore, 817.
V. Peacock, 276.
V. Smith, 171.
Central R. R. of Georgia v. Ryals,

1018.
Central Railroad of New Jersey v.

Stoermer, 1034.
Central Railroad & Banking Co. y.
Bayer, 1072.
V. Brunswick & W. R. Co.. 929.
V. Bryant, 464.
V. Dottenheim, 381.
V. Georgia Fruit & Vegetable Ex-
change, 1068, 1071.
V. Hasselkus, 307, 309.
V. Kitchens, 333.
V. Phillips, 872.
V. Pickett, 903.
V. Roberts, 1079.
V. Rylee, 987.
V. Strickland, 1086.
Central Transp. Co. v. Pullman's Pal-
ace Car Co., 237, 933.
Central Trust Co. v. East Tennessee,
V. & G. R. Co.. 208.
V. St. Louis, A. & T. Ry. Co., 207.
V. Texas & St. L. Ry. Co., 207.
V. Wabash, St. L. & P. Ry. Co.,
208, 797.
Central Vermont R. Co. v. Soper, 307,

898.
Cert well v. Hoyt, 454.

Cerveny v. Chicago Daily News Co.,

494. 495.
Cesar v. Karutz. 853.
C. F. Simmons Medicine Co. y. Mans-
field Di-ug Co., 147.
Chadbourne v. Straw, 665.

V. Zilsdorf, 358.
Chadderdon v. Michigan Cent R. Co.«

895.
Chaddock v. Plumma*, 852.
Chadwick v. Hereapath, 521.
Chaffee v. Old Colony R. Co., 956.

V. United States, 213.
Chaffln V. Lynch, 522.
Challiss V. Wylie, 284.
Chalmers v. Smith, 698.
Chamberlain v. Boyd, 382, 489.

V. Clayton, 126.

V. Enfield, 857.

V. Haglewood, 450.

V. Milwaukee & M. R. Co., 1030,
1043, 1085.

V. Porter, 384.
Chamberlaine v. Chester, 918.
Chamberlin v. Fuller. 596.

V. Vance, 519.
Chambers v. Baldwin, 6, 49, 636.

V. Bedell, 677.

V. Donaldson, 669, 68a

V. Robinson, 607.

V. Trust Co., 251.
Champer v. State, 200.
Champion v. Vincent, 366.
Chance v. Warsaw Water Works, 766.
Chandelor v. Lopus, 563, 580, 587.
Chandler v. Com.. 159.

V. Deaton. 160.

V. New York, N. H. & H. R. Co.,
104.

V. Ricker, 733.
Chandler Elec. Co. v. Fuller, 769, 835.
Chapel V. Hull. 700.

V. Smith, 762.
Chapell V. Schmidt, 156.
Chapin v. Freeland, 723.

V. Walsh, 839.
Chapman v. Brite, 205.

V. Copeland. 82.

V. Dodd, 613.

V. Erie R. Co., 1000, 1043.

V. Lamphire, 506.

CASES CITED.

1119

[Vol. 1 comprises pages 1-652, inclusive; toI. 2 the residue.]

Otiapman v. New Haven R. Co., 981.

V. Pickersgill, 85, 607, 609.

V. State, 9, 50, 113, 433.

V. Telejcrraph Co., 369.

V. Woods, 611.
Charkieh, The, 110.
Charlebois v. Gogebic & M. R. Co.,

228.
Charles v. Taylor, 1036, 1039.
Charleston & 0. S. B. Co. v. Bason,

1063.
Charlotte v. Pembroke Iron Works,

786.
Charlotte, C. & A. R. Co. v. Wooten,

1070.
Charlton v. Watton, 532, 533.
Chase v. Blaisdell, 714.

v. Broughton, 579.

V. City of Portland, 17a

V. Heaney, 133, 911.

V. Silverstone, 758.

V. Whitlock, 496.
Chase Co. Nat Bank y. Thompson,

352.
Chasemore v. Richards, 35, 54, 90,

557, 758.
Chataigne v. Bergeron, 50.
Chatfleld v. Commerford, 539.
Chatfleld v. Wilson, 66, 758, 760.
Chatham v. Bradford, 134.
Chatham Furnace Co. v. Moffatt, 569.
Chattahoochee Brick Co. v. Braswell,

167, 195. 214, 1028.
Chattanooga, R. & C. R. Co. v. Palm-
er, 903.
Chauvet v. Hill, 759.
Cheatham v. Red River Line, 415.

V. Shearon, 771, 847.
Cheboygan Lumber Co. v. Delta

Transp. Co., 840.
Cheeney v. Ocean S. S. Co., 1040,

1041.
Cheesebro v. Powers, 553.
Cheesman v. Exall, 713.
Cheetham v, Hampson, 224, 228.
Cheever v. Pearson, 686.
Chellis v. Chapman, 455.
Chelsey v. Thompson, 497.
Chenery v. Fitchburg R. Co., 881, 886.
Cheney v. Middlesex Co., 1005.

V. Powell, 211, 581, 582, 592.

V. White. 253.

Cheney v. Woodruff, 253.
Chenowith v. Dickinson, 901.
Cherry v. Stein, 750.
Chesapeake, O. & S. W. R. Co. v.
Higglns. 334, 404.

V. McDowell, 1017, 1027.
Chesapeake & O. R. Co. v. Hafner's
Adm'r, 1017.

V. HIckey, 669.

V. Yost, 824.
Chesley v. King, 57, 60, 557, 758.
Chester v. Comstock, 563.
Chestnut Hill Turnpike Co. y. Martin.

349.
Chevallier v. Straham, 1057, 1062.
Chicago V. Bixby, 279.

V. Elzeman, 381.

V. Jones, 397.

V. Joney, 181.

V. Kelly, 180, 397.

V. Langlass, 397.

V. McGiven, 178.

V. Martin, 394, 397.

V. O'Brenan. 384.

V. Bobbins, 145, 236, 922.
Chicago Anderson Pressed-Brick Co.
V. Reinneger, 1004-1006.

V. Sobkowiak, 1040; 1041, 1043.
Chicago, B. & L. R. Co. v. Landauer,

1086.
Chicago, B. & Q. R. Co. v. Bell, 314.

V. Bryan, 396.

r. Chicago, Ft. M. & D. Ry. Co.,
354.

V. City of Quincy, 783.

V. Dennell, 928.

V. Dickson, 204, 471, 825, 1080.

V. Dunn, 471.

V. Grablin, 860, 872.

V. Gregory, 978.

V. Hale. 384.

V. Harwood, 883, 929.

V. Hazzard, 957.

V. Hlnes, 370.

V. Krlskl. 615.

V. Landauer, 964, 1084, 1090, 109.'^.

V. Oleson, 932, 955.

V. Stumps, 1010.

V. Warner, 978.

V. Wells, 930.

V. Wilgus, 955.

V. Wymore, 313, 314, 955.

1120

CASES CITED.

[Vol. 1 comprises pages 1-^2, indasiTe; vol. 2 the residue.]

Chicago City Ry. Co. v. McLaughlin,
860.
V. McMahon, 253.
V, Mogk, 277.
y. Robinson, 986.
V. Wilcox, 161, 986, 987.
Chicago Drop Forge & Foundry Co.

V. Van Dam, 1026.
Chicago, F. & B. Co. v. Sanche, 410.
Chicago, K. & N. R. Co. v. Brown,

979.
Chicago, K. & W. R. Co. v. Bock-
oven, 831.
V. Fisher. 861.
V. WlUlts, 693.
Chicago, M. & St. P. Ry. Co. v. Car-
penter, 881.
V. Elliott, 374.
V. Lowell, 1087.
V. Roes, 192, 10^58, 1047, 1048.
V. West, 258. 1035.
Chicago, P. & St. L. R. Co. v. Lewis,

950, 1084, 1090.
Chicago R. Co. v. Shea,- 66.
Chicago, R. I. & P. R. Co. v. Caul-
field, 370, 882.
V. Doyle, 317.
• r. Houston, 884.
V. Lewis, 312, 318.
V. Linney, 993, 1012,
V. Lonergan, 1010.
V. McBrlde, 382.
V. Sharp, 882.
V. Shepherd, 664.
V. Stahley, 98, 1055.
V. Sutton, 68, 210.
Chicago, R. L & T. Ry. Co. v. Hitt,

370.
Chicago, St L. & N. O. R. Co. v.
Abels, 306.
V. Pounds, 330,
Chicago, St. L. & P. R. Co. v. Barnes,
63.
V. Butler, 884.
V. Frey, 1023.
V. Fry, 1002, 1011.
V. Spllker, 875, 928, 983,
V. Williams. 63, 846.
Chicago, St. P., M. & O. Ry. Co. v.
Elliott, 67.
V. Gilbert, 845, 847.
V. Lundstrom, 1043.

Chicago, St P. & K. C. Ry. Co. v. An-
derson, 875.
Chicago, St P. & K. C. Ry. Co. v.

Pl«x», 321.
Chicago, T. & M. C. R. Co. v. Tltter-

ington, 340.
Chicago, W. & V. Coal Co. v. Glass,
771, 847.

V. Peterson, 3lT.
Chicago & A. R. Co. v. Amol. 1090,
1093.

V. Byrum, 1084, 1093.

V. Flagg, 371.

V. Gregory, 16L

V. KeUy, 1037.

V. Kerr, 1010.

V. Pennell, 374.

V. Randolph, 057.

V. Wilson, 391.
Chicago & E. I. R. Co. v. Hedges, 932.

V. Hines, 990.

V. Knelrlm, 993, 1045.

V. Roberts, 967.
Chicago & E. R. Co. v. Barnes, 36L

V. Branyan, 957, 990, 991, 1008.

V. Flexman, 262.

V. House, 847.

V. Kern, 362.

V. Loeb, 793.

V. Ludlnirton, 72, 846.

V. Smith, 362.
Chicago & L Coal R. Co. v. McDan-

iels, 943.
Chicago & N. R. Co. v. McCahlll, 846.
Chicago & N. W. R. Co. v. Bayfield,
253, 1047.

V. Chapman, 301.

V. Dimleavy, 825.

V. Aforanda, 1042.

V. Prescott, 69.

V. WiUlams, 168, 371.
Chicago & R. L R. Co. v. Warren.

1069.
Chicago & W. I. R. Co. v. Slee, 664.
Chick V. Railway Co., 327.
Chlckerlng v. Robinson, 118.
Chldester v. Consolidated Ditch Co.,

65, 70,
Child V. Affleck, 543, 544

V. Boston, 179, 180.

V. Boston & F. H. Iron Works,
342.

GASES CITED.

1121

[Vol. 1 comprises iMiges 1-652, indurive; yol. 2 the residue.]

GhUd V. Hearn, 981, 984.
Chllders v. San Jos6 Mercury Printiu^;
& Pub. Co., 504, 517.

V. Wooler, 50G.
Ghilds V. Bank, 168.

V. Merrill, 501. 579, 601.

V. New York, O. & W. Ry. Co.,
970.

V. Pennsylvania R. Co., 862.
Child's Estate, In re, 205.
Chiles V. Drake, 304.
Chils V. Gronlund, 214.
Chilton V. City of Carbondale, 871.
Chinery v. Viall, 737.
Chinn v. Morris, 421.
Chiatovich v. Davis, 756.
Chipley V. Atkinson, 646.
Chipman v. Bates, 676.

V. Emeric, 414.

V. Palmer, 212, 797. 798.
Ohlshokn v. Gadsen, 575.

V. Georgia, 110, 112.

V. Northern Pac. R. Co., 928.

V. Old Colony R. Co., 197.
('hislm Y. Gadsden, 85.
Choen V. Porter, 220.
Chopin V. Badger Paper Co., 1023.
Chrisman v. Bruce, 135.

V. Carney, 418.
Christens^i y. Union Trunk Line, 831.
Christian v. Columbus & R. Ry. Co.,
263.

y. Illinois C^t R. Co., 061, 966.
Christlansborg, The, 102.
CJhristle V. Davey, 773.

y. Griggs, 1058, 1084, 1085.
Chrlstopherson v. Bare, 203.
Chrysler v. Canaday, 571.
Church v. Atchison, T. & S. P. R. Co..
1072.

V. Mumford, 18.
Churchill V. Baumann, 200.

V. Holt, 215, 216.

V. Hulbert, 196.

V. Hunt, 496.

V. Lewis, 468.

y. Pacific Imp. Co., 337.

V. Siggers, 606. 634.
Cincinnati, H. & D. R. Co. y. Mar-

grat, 1056.
Cincinnati, H. & I. R. Co. v. Butler,
932.

LAW OF TORTS— 71

■ (^lucinnuti, H. & I. R. Co. v. Eaton, 377.

Cincinnati Inclined Plane R. Co. v.

City & Suburban Telegraph Ass*n.

865.

Cincinnati, I.. St. L. & C. R. Co. v.

Smock, 844.
Cincinnati, N. O. & T. P. R. Co. v. Bar-
ker, 72, 847.
v. Clark, 1043, 1053.
V. Mealer. 1003, 1005, 1006, 1017.
Cincinnati & Z. R. Co. y. Smith, 198,

946.
Cipperly v. Rhodes, 89.
Citizens' Loan Fund & Sav. Ass'n v.

Friediey, 916.
Citizens' St. R. Co. v. Lowe, 885.
Citizens' St. R. Co. of Indianapolis v.
Stoddard, 088, 989.
V. Willoeby, 262, 903, 1091.
City Council of Augusta v. Barnum,
792.
V. Burum, 686.
y. Hudson, 179.
V. Lombard, 950.
City Council of City of Charleston v.

Werner, 784.
City Council of Sheffield v. Harris, 181.
City of Abilene v. Cowperthwait, 177.
City of Albany v. Watervliet Turn-
pike & R. Co., 72.
City of Alexandria, The, 1041.
City of Allegheny v. Zimmerman, 785.
City of Americus v. Chapman, 175.
City of Anderson v. East, 839.
City of Atchinson v. King, 406.
City of Aurora v. Dale, 871.
City of Austin v. Colgate, 868.
City of Beardstown v. Smith, 978.
City of Beatrice v. Reld, 238.
City of Birmingham v. Tayloe, 178.
City of Bloomington v. Chicago, 144.
City of Brussels, The, 329.
City of Champaign v. Mclnnis, 176.

V. White, 873.
City of Chicago v. Babcock, 345, 346.
V. Fowler, 868, 869.
V. Laflln, 753.
V. I^nglass, 180.
V. Leseth, 402.
V. McCarthy, 868.
V. Major, 334.
V. O'Brennan, 224.

1122

CASES CITED.

\

LVul. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

City of Chicago v. Powers, 050.
City of Columbus v. Sims, 177, 381.

V. Strassner, 472.
City of Conyers v. Smith. 807.
City of Covington v. Geylor, 751. 752.
City of Dallas v. Young. 105.
City of Delphi v. Evnns. 689.
City of Demopolls, v. Webb. 807.
City of Denver v. Gapelli, 179.

v. Peterson, 962.

V. Soloman, 224.
City of Detroit v. Blackeby, 176.

V. Putnam. 174.
City of Duluth v. Mallett, 286.
City of Durango v. Luttrell, 145.
City of Elgin v. GoCC, 337.

V. Joslyn, 898.
City of Ki Paso v. Dolau, 178.
City of Eureka v. Merrltield. 327.
City of Evansville v. Decker, 179.
City of Ft. Wayne v. Duryee, 390.

V. Hamilton. 25.
CMty of Franklin v. Harter, 873.
City of Fresao v. Fresno Canal & Irr.

Co., 775, 802.
City of Friend v. Ingersoll. 391.
City of Galesburg v. Rahn, 970.
City of Galveston v. Posnaiusky, 173.
City of Grand Rapids v. Weiden. 778,

799, 800.
City of Greencastle v. Uazclett. 758.

793.
City of Hannibal v. Richards, 798.
City of Hillsboro v. Ivey, 177. 798.
City of Joliet v. Conway, 381.

v. Harwood, 849.

V. Seward, 849.

V. Shufeldt, G7.
(Mty of Kansas City v. Brady, 179,
181.

V. McAleer, 784.

V. Manning, 402,

V. Slangstrom, 211, 213.
City of Lanark v. Dougherty, 979.
City of Lincoln v. Staley. 917.
CMty of Logansport v. Dick, 849.
City of London Brewery Co. v. Ten-

nant, 750.
City of Ix)well v. Glidden, 798, 837.

V. Spaulding, 224.
City of McDonough v. Gilman. 797.
City of McGregor v. Boyle, 802.

City of Minneapolis y. Lundlin, 1041.
City of Moundsville v. Ohio River R.

Co., 807.
City of Murphysboro v. Woolsey, 966.
City of Nashville v. Sutherland, 361.
City of Navasota v. Pearce, 177.
City of New Castle v. Raney, 775, 803.
City of New Orleans v. Abbagnato,

175.
City of New York v. Brady, 323.
City of North Vernon v. Voegler, 178,

180. 336. 764.
City of Norwalk, The, 15, 213, 1041-
City of Norwich v. Breed, 888.
City of Omaha v. Ayer, 942.
City of Orlando v. Pragg, 177, 180,

798, 802.
City of Pekin v. McMahon. 820, 985.
City of Peoria v. Simpson, 224,
City of Peru v. Brown, 180.
City of Philadelphia v. Gavagnin, 179.

V. Gilmartln, 179.
City of PonUac v. Carter, 89, 175.
City of Portland v. Taylor, 471.
City of Richmond v. Long, 137.
City of Rochest^ v. Campbell, 100,
919.
V. Simpson, 783.
City of Rock Island v. Dels. 471.
City of St. Paul v. Gllflllan, 780.

V. Kuby, 988.
City of Sherman v. Langham, 798.
City of Sterling v. Schiffmacher, 238.
City of Streator v. Hamilton, 949.
City of Terre Haute v. Hudnut, 379,

810, 9ll.
City of Tiffin v. McCormack. 236.
City of Vicksburg v. Herman, 142.
City of Wilmington v. Vandegrlft, 174.
City of Wyandotte v. Agan, 472.
City & Suburban Ry. Co. v. Moores,

228, 231, 234.
Claflin V. Carpenter, 685, 686.
V. Flack, 589.
V. Gurney, 727.
V. Meyer, 1060.
V. Railroad Co., 719.
Clampit V. Chicago, St. P. & K. C. R.

Co., 892.
Clapp V. Thomas, 325.
Clapper v. Kells, 227.

V. Town of Waterford, 129, 949.

CASES C,^TED*

1123

[Vol. 1 comprises pages 1-662, inclasiTe; voL 2 the residue.]

Clare y. Bank, 989.
Clarence y. Marshall, 297.
Clarendon Land, Iny. & Agency Co.

y. McClelland, 858.
Clark V. Abbott, 315.

y. Adair, 183.

y. Anderson, 506.

y. Bardman, 398.

y. Barnard, 111.

y. Barnwell, 1061.

y. Bates, 693.

y. Brown, 474.

y. Carlton, 664.

y. Chamberiin, 712.

y. Chambers, 74, 850, 880, 887, 977.

y. City of Syracuse, 789.

y. Costello, 713.

y. Crego, 733.

y. Downing, 435.

V. Draper, 711.

y. Dyer, 339.

y. Famous Shoe & Clothing Co.,
150.

y. PMtch, 452-454.

y. Fry, 233.

y. Glidden, 686.

y. JeffersonyiUe, M. & I. R. Co.,
692.

y. Kellher, 152.

y. Lake St. Clair & N. U. R. Ice
Co., 802.

y. Lawrence, 793, 805.

.V. Levering, 286.

y. Marshall, 911.

y. Missouri Pac. R. Co., 915.

y. Molyneux, 516, 539.

y. Newsam, 215.

y. New York, P. & B. R. Co., 332,
333.

V. Pennsylvania R. Co., 765.

V. Ralls, 590, 598.

V. Rochester & S. R. Co., 1073.

y. St. Paul & S. C. R. Co., 1019.

V. Sargeant, 695.

y. Smith, 666.

V. Spence, 937.

V. Spicer, 123.

V. Stann, 423.

V. Wilmington & W. R. Co., 831,
974.

y. Wilson, 675.

Clark y. Woods, 136.
Clarke y. Anderson, 746.

y. Holmes, 1023, 1053.

v. Holrldge, 123.

y. MiUigan, 40, 273.

y. Ohio River R. Co., 928.

y. Pennsylvania R. Co., 967.

v. Postan, 613.
Clarkson v. Lawson, 523.
Clason y. City of Milwaukee, 92a
Clausen v. Meister, 340.
Clay v. Gage, 728.

y. People, 491.

y. Postal TeL Co., 863.

y. Roberts, 501.

V. Wood, 870.
Clayards v. Dethick, 963, 967, 972.
Clayton y. Scott, 425.
Cleary v. Municipal Electric Light

Co., 318, 320.
Clegg V. Dearden, 409.

v. Waterbury, 611.
Cleland v. Thornton, 35, 843.
Clem V. Holmes, 459.

V. Newcastle & D. R. Co., 581.
Clemence v. Steere, 698. 700, 701.
Clemens y. Speed, 90, 793.
Clement v. Chivis, 492.

V. Lewis, 523.

V. Western Union Tel. Co., 310.
Clement Manuf'g Co. v. Wood, 754.
Clements v. London & N. W. Ry., 314.

v. Louisiana Electric Light Co.,
826, 863, 870, 929, 943, 963.
971.

y. Odorless Excavating Appara-
tus Co., 608.

y. Ohrly, 613.
Clemen tson y. Minnesota Tribune Co.,

521.
Clendening v. Ohl, '692.
Clendon v. Dinneford, 725.
Cleveland v. Bangor St Ry., 146, 863.

V. Citizens' Gas-Light Co., 775,
780, 805.

V. King, 177.

y. New Jersey Steamboat Co., W8.

v. Spier. 2G6. 850, 992.

V. Tittle. 131.
Cleveland, C, C. & I. R. Co. y. Elliott,
929.

1124

0ASE8 crr£0.

[Vol. 1 comprises pages 1-652, inclusiye; toL 2 the residae.]

Cleveland, C, C. & I. R. Co. v. Har-
rington, J)2;j.
Cleveland, C, C. & St L. Ry. Co. v.
Abney, 026.

V. Abrens, 030.

V. Brown, 997, 1040, 1041«

V. De Bolt, 046.

V. Keely. 98G.

V. Ketcham, 1080.

V. Prewitt, 1072.

V. Uichey, 030.

V. Sloan, 9(50.

V. Stephenson, 896.

V. Tartt, 890.

V. Walter, 994.

V. Zider, 875.
Cleveland, C. & C. R. Co. r. Craw-
ford, 883.

V. Kerry, 1030.
Clevehind Rolling MiU Co. v. Corrl-

gan, 161.
Cleveland & P. R. Co. v. Speer, 143.
CUfford V. AUanUc Cotton MUls, 225,
838.

V. Cochrane, 491.

V. Dam, 226, 766.

V. Richardson, 916.
Cliffton V. Granger, 460.
Clifton V. Bury, 661.

V. Hooper, 83.
Clifton Iron Co. v. Dye, 804.
Cline V. Templeton, 204.
Clinton V. Myers, 55.

V. York. 452, 453.
Cloon V. Gerry, 61&
Clopp V. Mear, 894.
Clopton V. Cozart, 592.
Closson V. Staples, 600, 62a
Clothier v. Webster, 1S6.
Clough V. Tenney, 18.
Cloughessey v. City of Waterbury,

17&
Clouser v. Clapper, 465.
Cloutier V. Grafton & U. R. Co., 960.
Clow V. Chapman, 468.

V. Pittsbmgh Traction Co., 1085.

V. Plummer, 733.

V. Wright, 418.
Clowes V. Staflfordshlre Potteries Wa-
terworks Co., 806.
Clugston V. Garretson, 504.
Clulow V. McClelland. 182.

Clutterboek v. Chaffers, 483.
Clyde Y. Ri<4imond & D. R. Co., 1062.
Clyma v. Kennedy, 422, 439.
Clymer, Lessee of, v. Dawklns, 668.
Coal Creek Mln. Co. v. Davis, 1017.
Coates V. Burlington, 0. R. & N. Ry.

Co., 044. 948.
Cobb V. Columbia &. G. Railway Co..
264. 397.

V. Great Western Ry. CSo., 1063.

V. Wright, 599.
Cobbett V. Grey, 431.
Cochran v. Ammon, 460.

V. Miller, 913.

V. Toher, 419. 429.
Cochrane v. Little, 916.
Cochrane's Case, 463.
Cockayne v. Hodgklsson, 542.
Cockburn v. Erewash C. Co.. 186.
Cockroft V. Smith, 442.
Cocks V. Nash. 345.
Codd V. Cabe, 427.
Codding v. Wood, 315.
Codman v. Evans. 779.

V. Freeman, 664.
Coe V. English. 656.
Coeur d'Alene C. & M. Co. v. Miners'

Union, 357. 358. 643. 649.
Coffey V. Bank. 738.
Coffin V. Coffin. 115, 529.

V. Inliabitants of Palmer, 955.

V. Loper. 705.

V. Varila, 370, 423.
Cofleld V. McCabe, 276, 277.
Cogdell V. Yett, 58.
Coggill Y. Millbum Land Co.« 704.
Coggs V. Barnard, 812, 816, 1063.

V. Bernard, 7, 18, 26. 36, 91, 861,
901, 1059, 1062. 1063, 1073.
Coggswell V. Bohn, 621.
Cogswell V. Railroad Oo., 402, 789,

1081, 1090.
Cohen v. Hoff, 119.

V. Huskisson, 428.

V. Morgan, 613.

V. Railway Co., 252, 1081.
Cohoon V Chicago, B. & Q. R. Co.,

920.
Coker v. Birge, 780.
Colburn v. Patmore, 190.
Colby V. McGee, 513.

V. Reynolds, 492. 509.

CASES CITED.

1125

[Vol. 1 comprises pages 1--652, indusiye; toL 2 the residue.]

Cole V. Bradbury, 759.

V. Buckle, 408.

y. Gassidy, 564. 570.

V. Curds, 613.

V. Fisher, 50, 656.

V. Goodwin, 1007.

V. Kegler, 802.

Y. Logan, 756.

V. Nashyille, 39.

Y. Neustadter, 502, 512.

Y. Stewart, 667.

Y. Turner, 434.

V. Western Union Tel. Co., 307.
Cole Bros. v. Wood, 1044.
Colegroye y. Railroad Co., 211.
Coleman y. Allen, 616.

V. Chadwlck, 753.

V. Pearce, 269, 714.

y. Railroad Co., 288.

y. Riches, 252.

y. State, 113.

V. White, 465.
Coles V. Clark, 734, 735.

V. Kennedy, 575, 577.

y. LoulsYllle, E. & St L. R. Co..
308, 309.

y. Thompson, 522, 543.
Coif y. Chica«:o, St. P., M. & O. Ry.

Co., 881, 958. 1023.
Colgroye y. Railroad Co., 213.

y. Smith, 233, 234.
Collamer y. Page. 123.
Collard y. Delaware, L. & W. R. Co.,
342.

y. Gay, 622.

y. Marshall, 353.
Collen y. Wright, 586.
Coller y. Lower, 631.
CoUett y. London & N. R. Co.. 905.
Collins y. Brackett. 425.

y. Chartiers Val. Gas Co., 230,
740, 758, 777, 814.

y. City of Keokuk, 354, 355.

y. City of Philadelphia. 179.

y. Council Bluffs, 406.

V. Crimmins, 096.

y. Cronln, 639.

y. Dispatch Pub. Co., 470. 496.

y. Dodge, 391.

y. Eyans, 566.

y. Hutchinson, 132, 133.

y. Middle Level Com'rs, 74, 78.

Collins y. Railway Co., 242, 824, 966.
1043, 1077.

y. Whitehead, 553.
Collins Co. V. Marcy, 685.
Collis y. Selden. 909.
Colly er y. Col Iyer, 504.
Colman y. State. 111.
Colorado Consolidated Land & Water
Co. y. Hartman, 361.

y. Morris, 672.
Colorado M. Ry. Co. y. O'Brien, 1027.
Colrick V. Swinburne, 758. 808.
Colt y. McMeoham, 1062.

y. Sixth Aye. R. Co.. 952.
Colter y. Lower, 605, 630.
Colton y. Onderdonk, 848.

y. Richards, 1046.
Columbia Electric Co. y. Dixon, 580.
Columbia Mill Co. y. Alcorn, 147.

y. National Bank of Commerce,
42.

Columbia & P. S. R. Co. y. Haw-
thorne, 949.

Columbus y. Dahn, 764.

Columbus Gas Light & Coke Co. v.
Freeland, 759. 781. 814.

Columbus, H. V. & T. Ry. Co. v.
Erick, 869. 1008. 1056.

Columbus & H. Coal & Iron Co. y.
Tucker, 773.

ColYiU y. Langdon. 445. 471.

Oolviu V. Corwin, 404.

y. Peabody, 243, 851,' 963.

Comaskey y. Railway Co., 391.

Come y. Knowles, 417.

Comer y. Knowles, 421, 430, 631.

Comfort y. Creelman, 724.

Commercial Bank y. Yamum, 134.

Comminge y. Stevenson, 405, 767, 769,
797, 800, 847.

Commissioners* Court of Butler Co.
y. McCann, 454.

Commissioners of General Land Of-
fice y. Smith. 124.

Commissioners of Hamilton Co. v.
Mighels, 182.

Commissioners of Kensington y.
Wood, 767.

Commissioners of Marion Co. y. Clark,
952.

Commissioners of Niles Tp. y. Mar-
tin. 183.

1126

CASES aXED.

[VoL 1 comprisM pagea 1-652, iuclusive; vol. 2 the residue.!

Commonwealth y. Allen, 783.
T. Andrews, 111.
y. Blanding, 481.
V. Carlisle, 640.
V. Chace, 659.
V. Clark, 441.
V. Colburg, 203.
V. Cole, 764.
y. CoUberg, 444.
y. Croushore, 784.
Y. Deacon, 428.
V. Dicken, 773.
y. Donahue, 441.
V. Eyre, 432.
y. Haines, 134.
V. Harris. 770.
y. Hawkins, 438.
V. Hunt, 642.
y. Hurley, 603.
V. McAfee, 403.
V. McClure, 513.
V. McKie, 434, 435.
y. McManus, 031.
y. Magnolia Villa Land & Imp.

Co., 392.
y. Mechanics* Ins. Co., 582.
y. Miller, 783.
y. Morgan, 475.
y. Oakes, 770.
V. O'Malley, 430.
y. Parker, 200.
y. Perry, 783.
V. Pierce, 438, 874.
y. Pittson Ferry Bridge Co., 783.
y. Powers, 2f;3.
y. Roberts, 783.
V. St. Patricks, 14a
y. Shelton, 648.
y. Slattery, 11.
V. Snelling, 511.
V. Spratt, 770.
y. Stacey. 541.
V. Stratton. 437.
y. Thompson, 012. 013.
y. Tobin, 674.
y. Union League of Philadelphia,

140.
y. Upton, 774.
V. Webb, 0.
V. White, 0.
V. Wolf, 767.
y. York, 513.

Compau y. Compau, TS8.
Compton y. Richards, 750.
Comstock y. Hopkins, 345.

y. Matthews, 14.
Conant y. Jones, 756.
Conboy y. Dickinson, 751, 752.
Concord Bank v. Gregg, 169.
Concord Manufg Co. y. Robertson,
755.

Condict y. Grand Trunk R. Co., lOGO^
1062.

Condoures y. Imperial Turkish To-
bacco & Cigai-ette Co., 353.

Cone y. Ivinson, 707, 710, 731, 732.

Cones y. Board, 184.

Congdon v. Howe Scale Co., 400, 948.

Conger y. St Paul, M. & M. Ry. Co.,
262.

Congraye y. Southern Pac. R- Co.,
332.

Congreve y. Morgan, 766.

V. Smith, 226, 246, 766, 772.
Conhocton Stone Road y. Buffalo, N.

Y. & E. R. Co., 774, 797.
Couklin y. New York Cent. & H. R.
R. Co., 850.
y. Old (^olony, 689.
y. Thompson, 160. 851.
Conkling v. Pacific Imp. Co., 755^
Conlan y. Railroad Co., 805, 1035.

y. Roemer, 578.
Conley v. Portland, 1036.
Conlon y. Oregon, S. L. & U. N. Ry.

Co., 004.
Connah v. Hale. 728.
Connecticut y. May. 152.
Connecticut Mut. Life Ins. Co. t.
New York & N. H. R. Co., 327, 329.
Conner v. Dundee Chenjical Works,
313.
y. W^oodflU, 746. 762.
Connery y. Manning, 620, 622.
Connolly v. Boston, 104.

y. Davidson, 206, 851, 1035.
y. :Maurer, 1046.
V. Paillon, 1006.
Connor y. Chicago, R. L & P. Ry.
Co., 1056.
y. Hall, 705. 802.
Connors v. Durite Manuf*g Co., 937,
1000.
y. GriUey, 873.

OASBS CITED.

1127

[Vol. 1 comprises imges 1-^2, inclasive; yoI. 2 the residue.]

Gonnors v. Hennessy. 232.

V. Morton, 875, 099, 1017.
Gonnoss v. Meir, 707.
Gonrad y. Arrowhead Hot Springs
Hotel Co., 766.
V. Ithlca, 176.
V. Lane, 164.
Gonroe v. Birdsall, 165.

V. Conroe, 549.
Gonrow v. Little. 323.
Conroy v. Pittsburg Times, 514, 550.
Consolidated Goal Co. t. Bruce, 241,
997.
V. Scheller, 1006.
Consolidated Coal Co. of St. Louis v.

Haenni, 1023, 1025.
Consolidated Goal & Min. Go. v.
Clay's Adm'r, 921, 996, 1045, 1050.
Consolidated Ice Mach. Co. v. Keller,

72, 212, 214, 260.
Consolidated Roller Mill Go. v.

Coombs, 344.
Constable v. National S. S. Co., 299.

1067, 1069, 1070.
Constant v. Lehman, 3G2.
Continental Const. & Imp. Co. v.

Vlnal, 610.
Continental Imp. Co. v. Stead, 885.
Continental Ins. Co. y. Insurance Co.

of Pennsylvania, 42, 271.
Continental Nat. Bank v. Bowdre,

506.
Contrast Union St. Ry. Co. v. Stone,

62.
Converse v. Bralnerd, 65.
Conway v. Carpenter, 441.
V. Grant, 855.
V. Nlckle, 401.
V. Railroad Co., 1090.
V. Reed, 159.
Conwell V. Voorhees, 138.
Cook y. Beal, 442.
V. Beale, 404.
V. Churchman, 638.
V. City of Milwaukee, 178.
V. Gourdln, 65.
V. Howard, 669.
V. Illinois Cent. R. Co., 253.
V. Johnston, 920, 925.
V. Palmer, 139.
V. Patterson, 712.
T. Prldgen, 686.

Cook V. St. Paul. M. & M. Ry. Co., 102a

V. Steams, 083, 685.

V. Walley, 13.

V. Wood, 466.
Cooke V. Bangs, 120, 122, 123, 527.

V. Forbes, 781, 787.

V. Jennor. 345.

V. Waring, 858.

V. Wildes. 529, r)42.
Cool V. Crommet. 678.
Coolbroth v. Maine Cent. R. Co., 862.
Coolldge V. Goddard, 594.
Coombs V. New Bedford Cordage Co.,

899. 1022. 1023.
Coomes v. Houghton, 47.
Goontz V. Missouri Pac. Ry. Co., 389.

1007, 1008, 1045.
Cooper, In re, 119.

V. Berry, 297.

V. Booth, 006.

V. Chltty, 722.

V. Cooper, 41.

V. Crabtree, 82, 666.

V. Davis, 704.

V. Dolvln, 779.

V. Greely, 511.

V. Hart, 623. 624.

v. Landon, 18.

V. Loverlng, 578, 580.

V. McKenna, 126, 434.

V. Phlpps, 526.

V. Railroad Co., 331, 769, 895, 949.
1030, 1043.

y. Randall, 769, 779, 781, 794, 840.

V. Reynolds, 116.

V. Schleslnger, 569.

V. Stephenson, 917.

V. Stone, 536.

V. Sun Printing & Publishing
Ass'n, 393, 396, 475.

V. Utterbach, 628.

v. Waldron, 952.

V. Witham. 218.
Cope V. Hampton Co., 97, 931.
Copley V. Grover & Baker Sewing

Mach. Co., 169.
Coppinger v. Bradley, 421.
Corbett v. Twenty-Third St. By. Co..

331.
Corby v. Hill, 574, 892, 895.
Corcoran v. Concord & M. R. Co., 241.

Y. Harran, 446.

1128

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

•Corcoran v. Village of Peekskill, 949.
Cordell v. New York Cent & H. R.

R. Co.. 943.
Core V. Ohio R. Co., 1039.
Cor]£ v. Blossom, 54, 475, 835, 840.
Corliss y. Dunning, 405.

V. E. W. Walker Co., 94, 356.
•Cornelius v. Hambay, 394, 465.

V. Uultman, 410.
Cornell t. Barnes, 136.

V. Cook, 404.
Corn Exchange Bank v. Farmers' Nat.

Bank, 285.
Cornfoot v. Fowke, 252, 207, 268, 558,

587.
Coming V. Coming, 58.

V. Troy Factory, 90.
Cornman y. Eastern Counties Ry. Co.,

891, 893, 1084.
Comwell y. Parke, 553.
Correll y. Burlington, C. R. & N. Ry.

Co., 924.
Corrigan y. Union Sugar Refinery, 940.
(Corsair, The, 328, 415.
Cortland Manuf'g Co. v. Crosky, 589.
Corwin V. Walton, 395.
Cory V. Chicago, B. & K. O. B. Co.,
316.

V. Gertcken, 165.

V, Silcox, 82.
Cosair, The. 308.
Cosand v. Lee, 511.
Cosgraye y. The Trade Auxiliary Co.,

533.
Cosgroye y. Ogden, 253, 260.

y. Pitman, 998.
Costigan y. Pennsylyania R. Co., 141.
Cosulich V. Standard Oil Co.. 848. 850.
Cote y. Murphy, 642, 643.
Cotteral y. Cummins, 18.
Cotterell v. Jones. 006-608, 038.
Cotterlll y. Starkey, 828, 879.
Cotton y. James, 606.

y. Wood, 35, 878, 935, 930.
Cottrell y. Cottrell, 029.
Cottrlil V. Chicago, M. & St. P. Ry.
Co., 909.

V. Krum, 590-598.
Cotulla y. Kerr, 481, 507.
Cotzhausen y. Simmons, 570.
Couch y. Steel. 180, 918.
Coujrhey v. Smith, 449.

Coughtry v. Globe Woolen Ck>., 885.

1030.
Cougle y. McKee, 997.
Coulter y. Adams Exp. Co., 968b

y. Pine Tp., 889.
Coulterville & Y. Turnpike CJo. ▼.

State, 111.
County Board of Education v. State

Board of Education, 337.
County Com'rs y. Baker. 185.

y. Duvall, 138.

y. Gibson, 184.
Coupland y. Hardingham, 765, 891.

y. Housatonic R. Co., 305, 1075.
Courtis y. Cane, 735.
Courtney y. Baker, 278.

y. Mannhein, 499.
Cousins V. Railway Co., 362, 391.
Couts y. Neer, 70, 839.
Coyanhoyan y. Hart, 55.
Coyerdale y. Charlton. 671.
Coward y. Baddeley, 438.

y. Railroad Co., 300, 304.
Cowden y. Wright, 459.
Cowen y. Simpson, 591.
Cowles y. Richmond R. Co., 1047.
Cowley y. Dayidson, 306.

y. Smyth, 560.
Cowling y. Higginson, 688.
Cox y. Burbidge, 768, 854, 855, 932.

y. Cooper, 501.

y. Glue, 667, 753.

y. Hart, 656.

y. Highley, 565.

y. Keahey, 255,

y. i^ee, 41jo.

y. Leech, 915.

V. Munsey, 450.

y. Taylor, 609.
Coxhead y. Richards, 531, 541.
Coyle y. Pierrepont, 1034.
Crabtree y. Robinson, 677.
Craft y. Boite, 506.

y. Parker, 907.
Crafter y. Metropolitan R. Co., 883,

933.
Craft Refrigerating Mach. Co. y. Quin

nipiac Brewing Co., 27, 898.
Cragle y. Hadley, 169, 565.
Craig y. Board, 914.

V. Chicago & A. R. Co.. 999.

y. Cook, 393, 401.

CASES CITED.

1129

[Vol. 1 comprises pages 1-652, incluidTe; vol. 2 the residue.]

Craig T. Gilbretli, 669.

y. Hamilton, 594.

V. Plumkett, 785.

V. Pueblo Press Pub. Co.. 484.
Graigin y. Lovell, 103.
Craker v. Railway Co., 258, 262^
Cramer y. Burlington, 165.

y. City of Burlington, 919.

y. Kester, 357.

y. Openstein, 131.
Crampton v. Valido Marble Co., 727.
Cranch y. White, 287.
Crandell y. Goodrich Transp. Co., 1X>5.
Crane y. Buchmann, 622.

y. Elder, 579.

y. Waters, 534-536.
Crane Eleyator Co. y. Lippert, 73, 894,

954.
Cranford y. Tyrrell, 770, 777, 786.
Crate y. Dacora, 545.
Crater y. Binninger, 375.
Cratty y. Bangor, 194.
Craven y. Rodenhausen, 777.

V. Smith, 995, 1015.
Grayer y. Christian, 320. 1023, 1052.
Crawford y. Andrews, 81.

y. Bynum, 669.

y. Clark, 1070.

y. Doggett, 221.

V. Parsons, 808.

y. Rambo, 761.
Crawley y. Timberlake, 699.
Crawson y. Western Union Tel. Co.,

369.
Credit y. Brown, 153.
Creed y. Hartman, 214, 233, 23a

y. Kendall, 989.
Cregan y. Marston, 1034.
Cregin v. Brooklyn Crosstown R. Co.,

330.
Creighton y. Evans, 82.
Cremer v. Humberton, 249.
Crenshaw y. UUman, 228, 234, 238.
Crescent City Live-Stock Landing &
Slaughterhouse Co. v. Butchers'
Union Slaughterhoujse & Live-Stock
Landing Co., 618.
Cressey y. Parks, 360.
Criner y. Pike, 669.
Crispin v. Babbitt, 1039, 1041, 1046.
Cristman v. Cristman, 539, 542.

Orlswell y. Pittsburgh, St. L. & O.

Ry. Co., 1023.
Crittal y. Horner, 509.
Croasdale y. Bright, 499.
Crocker v. Carson, 675.

v. Hopps, 707.

V. Mann, 677.

y. Railway Co., 253.
Crocket v. Beaty, 723.
Croft y. Alison, 253.

V. Richardson, 353.
Crofts y. Waterhouse, 1083.
Crommelin y. Coxe, 794, 797.
Cromwell y. County of Sac, 323.
Cromweirs Cose, 486.
Cronfelt y. Arrol, 392.
Cronkhite y. Cronkhite, 683.
Crooker v. Benton, 759.

V. Bragg, 82.
Groom y. Chicago, M. & St P. U. Co.,

1091, 1093.
Cropp V. Tllney, 477, 491.
Crosby y. Clark, 714.

y. Fitch, 65, 1062.

y. Humphreys, 446.

y. Murphy, 917.

y. Railroad Co., 141.
Crosland y. Pottsyille Borough, 800.
Cross V. Andrews, 1.55, 156, 158.

y. Barber, 726.

y California St. Cable Ry. Co.,
940.

y. Guthery, 327, 471.

y. Lake Shore & M. S. Ry. Co.,
946.

y. Mayor of Morristown, 793.

y. Rutledge, 401.

y. U. S., 414.
Crosse v. Kent, 156.
Crossley v. Lightowler, 769, 792.

y. Tomey, 777.
Crossman v. Rubber Co., 346.
Crosson y. Olson, 131.
Crouch y. London & N. W. Ry. Co.,

1058, 1067.
Crow y. Manning, 221, 222, 338, 363,

379.
Crowell v. Gleason, 634.

y. Jackson, 577.
Crowhurst v.Amersham Burial Board,
833, 853.

1130

CASES CITED.

[Vol. 1 comprises pe^et 1-652, inclurive; Tol. 2 the residue]

Crowley v. Page, 937.
v. Panama Ky., 330.
V. Strouse, 878, 9(58.
Crown V. Brown, 563.
V. Carriger, 578.
y. Leonard, 692.
V. Orr, 1016.
Crowther v. Farrer, 314.
Cruess v. Fessler, 571.
Cruikshank ▼. Gordon, 505, 545.
Crumble y. Wallsend Local Board,

408.
Crump y. Lambert, 780, 781, 787.
Crumpley y. Hannibal & St J. R. Co.,

924, 942.
Cruselle v. Pugh, 034.
Cubit y. O'Dett, 55.
Cubitt V. Porter, 668.
Cudlip y. Rundall, 840.
Cuff V. Newark R. Co., 228, 232, 236,

238, 769.
Culhane y. New York Cent. & H. R.

R. Co., 952.
CuUen V. Norton, 1041.

V. Trustees, 286.
Culliford y. Gadd, 585.
Culyer v. Rhodes, 733.
Cumberland v. Hitch Ings, 411.

y. WiUison, 142.
Cumberland Tel. & Tel. Co. v. United
Electric Ry. Co., 89, 100, 747, 832,
oi>4, ooD.

Cumberland V. R. Co. y. Hughes, 186.

y. Myers, 243.
Cumberland & O. Canal Corp. y.

Hitchings, 410-412.
Cuming V. Brooklyn City R. Co., 459,

461.
Cumlsky y. City of Kenosha, 178, 871.
Cummings y. National Furnace Co.,
939.
y. Wyman, 733.
Cunard Steamship Co. y. Carey, 994.
Cundy v. Lindsay, 654.
Cunningham y. Brown, 56, 127.

y. East River Electric Light Co.,

418.
y. Fitzgerald, 691.
V. Hall, 817.

V. Railroad Co., 111. 160, 232, 1036.
y. Seattle Electric Railway &
Power Co., 423.

Cunnington v. Railway Cou, 377, 573^
C'm-lewi8 V. Laurie. 674.
Curley y. Harris, 1036.
Curr y. Hundley, 751.
Curran y. Arkansas, 111.

y. Galen, 646.

y. Weiss, 965.
Currier v. Bllger, 316.

y. Poor, 601.
Curry v. Chicago & N. W. R. Co., 198.

y. Walter. 532.
Curtain y. Somerset, 900.
Curtice y. Thompson, 797.
Curtin y. Patton, 165.
Curtis y. Carson, 442.

y. Dlnneer, 263.

y. Eastern Ry., 763.

y. Galyin. 665.

y. Groat 662.

y. Hubbard, 674. 675.

V. Janzen. 40, 273.

y. Kiley, 224, 229, 233.

V. Mussey, 475, 513.

y. Paggett, 602,

y. Rochester & S. R. Co., 370, 035,
1085.

V. Schossler, 854.
Curtiss y. Ayrault, 759.

y. Colby, 134.

y. Fairbanks, 127.

y. Howell. 594.

y. Livingston. 696.

v. Rochester & S. R. Co., 406.
Cushing y. Adams, 145.
Cushman y. Ryan, 150, 446.
Cuthl)ert v. Galloway, 621.
Cutler v. Smith, 681, 694.
Cutter y. Fanning, 732.

y. Howe. 632.
Cutting V. Gmnd Ti»unk Ry. Co.,
1076.

V. Seabury, 327.
Cutts V. Spring, 670.
Czarnleeki, Appeal of, 769.
Czezewzka y. Ben ton-Belief ontelne
Ry. Co., 885, 946, 975.

D

Dade Coal Co. v. Haslett, 160.
Daggett v. Adams, 81.
y. Davis, 726.

CASES CITED.

1181

[Vol. 1 compriBes pages l-€52, inclnsive; toI. 2 the residae.]

Dahlberg v. Minneapolis St. Ry. Co.,

957.
Dahlstrom y. St. Louis, I. M. & S. R.

Co., 924.
Dailey v. Houston, 217.
Dally V. Van Bentluiysen, 488.
Daln V. Wyckoff, 454, 455.
Dalay v. Savage, 224, 796.
Dale V. Hall, 9()3, 1059.

y. Harris, 539, 544.

y. Radcliffe, 426.
Dalbelm y. Lemon, 167.
Dallas Rapid-Transit Ry. Co. y. El-
liott, 921.
Dalton y. Angus, 235, 752.
Dalyell y. Tyrer, 229, 238.
Dambmann y. Schulting, 596.
Dame y. Dame, 718.
Damon y. Moore, 455.

y. Scituate, 192, 878, 879, 925.
Damont y. Railroad Co., 957.
Damport y. Sympson, 127.
Dana y. Valentine, 804, 808.
Danafaer y. City of Brooklyn, 798.
Danby y. Beardsley, 013.
Dand y. Kingscote, 688.

y. Sexton, 662.
Daniel y. Metropolitan R. Co., 832.
935.

y. New York News Pub. Co., 387,
497, 543.

y. Swearengen, 448.
Daniels y. Bala n tine, 375.

y. Fielding, 604.

y. Hallenbeck, 400.

y. Keokuk Waterworks, 776.

y. New York & N. E. R. Co., 830.

y. Pond, 665.

y. Potter. 765.
Daniors Adm'r y. Chesapeake & O.

Ry. Co . 1030.
Danihee y. Hyatt, 664.
Danleayy y. Stockwell, 399.
Danner y. South Carolina R. Co., 822.
Dansey y. Richardson, 902.
Dantzler y. De Bardeleben Coal &

Iron Co., 1036.
Danziger y. Silyerthau, 704.
Darcantel y. Refrigerating Co., 783.
Darden y. Callagban, 715.
Dare y. Heathcote. 68a
Dark y. Johnston, 684.

Darley Main Colliery Co. y. Mitchell,

30, 408. 411.
Darling v. Bangor, 179.

y. New York, P. & B. B. Co.,
1006.

y. Passadumkeag Log Drlying
Co., 983.

y. Stanwood. 286.

y. Westmoreland, 951.
Darlington y. Mayor. 175.
Darnell y. Sallee, 612, 017.
Dartnall y. Howard, 917.
Dashwood y. Magnlac, 701.
Daughtry y. Warren, 776.
Davenport y. Anderson, 361.

y. Prince, 338.

y. Receiver of A. & C. R. Co., 208.
Daves y. Southern Pac. Co.. 281.
Davey v. London & S. W. Ry. Co.,.

956.
David y. Park, 596, 815.
David Bradley Manuf g Co. v. Eagle

Manurg Co., 323.
Davidson v. Abbott, 452, 454, 469.

v. Burke, 313.

v. Cornell, 1022.

V. Goodall, 454.

V. Nichols, 908. 909.
Davles v. Mann, 820, 973, 977.

V. Nicholas, 729.

y. Salomon, 489.

y. Snead. 530.

y. Williams, 676, 800, 80L
Davis, The. 111.
Davis y. Barger, 282.

y. Black, 79.

y. BulTum, 723, 727.

v. Burrell, 688.

y. Cardue. 353.

v. Carey. 504.

V. Central Congregational Soc.,.
807.

v. Clark. 696, 704.

V. Clinton Water Works Co., 919

v. Davis, 592, 594, 601.

V. Duncan, 533, 535.

v. Elmore, 672.

y. Fuller, 82.

v. Gardiner. 490.

y. Garrett, 376, 1063.

v. Gilliam, 699, 702.

V, Guamieri, 58, 332, 908, 960.

1182

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusiTe; vol. 2 the residue.]

Davis V. Hawkins, 340.
V. Houghtelln, 279.
V. Jacksonville S. E. Line, 10G8,

1071.
V. Jenkins, 581, 596.
V. LemoUle County Plank-Road

Co., 185.
V. Lewis, 506, 548.
V. Lottich, 733.

V. Marxbausen, 475, 513, 540.
V. Montgomery. 177.
V. New York, 1041.
V. Nicholas, 729.
V. Nichols, 331.
V. Noake, 613.
V. Nuzum, 570.
V. Railroad Co., 299, 884. 924,

lOiO, 1077.
V. Reeves, 542.
V. Russell, 422.
V. Sawyer, 780.
V. Shepstone, 536, 537.
V. gladden, 505.
V. SomerviUe, 194,
V. State, 543.
V. Stone. 632.
V. Sullivan, 7G1.
V. Town of Seymour, 856.
V. Vernon, 287.
V. Winslow, 783.
V. Wood, 317.
V. Young, 338.
Davison v. Duncan, 533.

V. Wilson, 688.
Daw V. Eley, 532.
V. Swalne, 603.
Dawe V. Flint, & P. M. R. Co.. 884.
V. Morris, 24, 88, 583, 584, 594,
600.
Dawkins v. Antrobus, 148.
V. Lord Paulet, 529.
V. Lord Rokeby, 119, 527. 530.
V. Prince Edward of Saxo-Wel-
mar, 119, 527.
Dawling V. Wenman, 127.
Dawson v. McCleary, 673.
V. Scbloss, 617.
V. State, 166.
V. Tremaine, 704.
V. Vansandau, 613.
Day V. Bream, 483.
V. Brownsrigg, 87.

Day V. Edwards. 19.

V. H. O. Akeley Lumber Co., 845,
876, 949.

V. Highland St. Ry. Co., 194, 973.

V. Milford, 837.

V. Woodworth, 382. 392. 743.
Dayton v. New York. L. E. & W.
R. Co.. 922.

V. Pease, 287.
Deacon v. Greenfield, 45.
Dean, In re, 92.

V. Branthwaite, 247.

V. Brock, 290.

V. Hogg, 442.

V. Nelson, 167.

V. Newhall, 345.

V. Peel, 451^ 453.

V. RaUroad Co., 219, 220, 242, 921.

V. Randolph, 849.

V. Raplee, 435, 445.

V. St Paul Union Depot Co.. 262
1088.

V. State, 444.

V. Taylor, 442.
Deane v. Clayton, 768, 829, 886.
Deans v. Railroad Co., 831.
Dearborn v. Dearborn. 18.
Dearboum v. Union Nat. Bank, 727.
De Armond v. Armstrong, 485.
De Bolt V. Railway Co., 896.
Debs, In re, 359.
De Camp v. Railway Co., 255.
Decatur v. Fisher, 397.
Decatur Q. L. & c. Co. v. Howell,

Deck V. Dyson, 857.

Decker v. City of Scranton, 17a

V. Gammon, 855.

v. Hardin, 575.

V. Mathews, 739.
De Courcey v. Cox. 122, 124.
De Cresplgny v. Wellesley, 548.
Deeds v. Chicago. R. I. & P. R, Co.,

975.
Deeley v. Dwight, 716.
Deerlng v. Austin, 735.
Deford v. Miller, 492.
De Forest v. Jewett 332.
De Forrest v. Wright, 231.
Defries v. Davis, 161.
Degg V. Midland Ry. Co., 281, 991.
Degnan v. Ransom, 912.

CASES CITED.

113a

[Vol. 1 comprises pages 1-652, indusiTe; vol. 2 the residue.]

De Graw v. Elmore^ 25.

De Gray v. Aiken, 891.

De Harm y. Mexican Nat By. Ck).,

104.
De Haven v. Helvie. 457, 460.
Dehrlng y. Ck)mstock, 938, 940.
Delhi y. OttenyUle, 255.
Delacroix y. Thevenot, 480, 481.
Delaney y. Kaetel, 486.
Delaware, The, 1063.
Delaware Ins. Co. y. Croasdale, 480,

522.

Delaware, L. & W. R. Go. y. Ashley,
1058.
y. Gonyerse, 933. 953. 956.
y. Hefferan, 884.
y. Salmon, 72« 846.
y. Shelton, 882.
Delaware R. Co. y. Commonwealth,

18a
Delaware Riyer Iron Ship-Building

Co. y. Nuttall, 1003.
Delaware & A. Tel. & Tel. Co. y.

State, 302.
Delaware & R. Canal Co. v. Lee, 100,
143, 186.
y. Wright, 336, 412.
Da Lee y. Blackburn, 568.
Delemater y. Russell, 476.
Delle y. Chicago & N. W. R. Co.,
405.

Delisser y. Towne, 607.

Dells y. Stollenwerk, 279.

Delude y. St. Paul City Ry. Co., 1052.

Delz y. Winfree, 146, 646, 648, 650.

Delzell y. Indianapolis & C. R. Co.,

185.
De Mahy y. Morgan's L. & T. R. R.

& S. S. Co.. 989.
De Marcho y. Builders* Iron Foundrj',

1040. 1045.
Demarest y. Hardham. 749, 777.

y. Keefe, 769.
De May y. Roberts, 85, 94, 147.
De Medina y. Groye, 513, G04.
Demick y. Cliapman, 669.
Deming y. Merchants* Cotton-Press

& Storage Co.. 63. 1066.
Demming y. Darling, 580.
Dempsey y. Chambers, 43, 47.
y. City of Rome, 175.
y. Lepp, 609.

Den V. Kenney. 701.
Den Bleyker y. Gaston, 362.
Denby y. Wilier, 142.
Dench y. Walker, 730.
Denmann y. Railway Co., 370.
Dennehey y. Woodsum, 629.
Denning y. Darling, 597.

y. Gould, 997.
Dennis y. Clarke, 461.
y. Eckhardt, 767, 769.
y. Harris, 979.

y. Johnson, 481, 508, 625, 545.
Denny y. Railroad Co., 63, 375.
Densmore y. Cowan, 165.
Denson y. Ham, 131.
Dent y. Auction Mart Co., 750.

y. Chiles, 728.
Denton y. Great Northern Ry, Co.,

269.
Denver, S. P. & P. Ry. Co. y. Wood-
ward, 330, 1085.
Denver Tramway Co. v. Reld, 831,

1084.
Denver, T. & Ft. W. R. Co. v. Dotson,

361.
Denver & B. P. Rapid-Transit Ca v.

Dwyer, 955, 975.
Denver &. R. G. R. Co. y. De Graff,
846.
y. Harris, 172, 196. 384, 896, 687.
v. Morton, 846, 965.
y. Ryan, 942.
Deo y. Van Valkenburgh, 417.
De Pew y. Robinson, 505.
Depierris y. Mattern, 805.
Deppe y. Chicago, R. I. & P. R. Co.,

1055.
Derby's Adm'r v. Kentucky Cent. R.

Co., 823.
Derecourt y. Corbishley, 427.
De Roo y. Foster, 164.
Derosa y. Hamilton, 345.
Derosia y. Winona & St P. R. Co..

1070.
Derry y. Flitner, 378.

y. Peek, 566-569, 67a
De S. y. De S., 431, 433.
Des Jardins y. Thunder Bay River

Boom Co., 673.
Desmond v. Brown, 479.
De Stelger v. Railroad Co., 303.
Detroit v. Blackeby, 184.

1134

CASES CITED.

[Vol. 1 comprises jjiagea 1--652, inclusive; vol. 2 the residue.]

Detroit V. Osborne, 176.

V. Putnam, 176, 185.
Detroit Daily Poet Co. v. McArthur,

396.
Detroit & C. Co. v. McArthur, 169.
Detroit & M. li. Co. t. Van Steinburg,

810, 822, 933.
Dettra v. Kestner, 270.
Devare v. United States, 682.
Devereux v. Barchiy, 35, 718, 719.
Devery v. Grand Canal Co., 338.
Deville V. Railroad Co., 257.
Devlin v. Gallagher, 926.

V. Smith, 894, 895, 1033, 1035.

V. Snellenburg, 661.
De Wahl v. Braune, 106.
Dewell V. Moxon, 719.

V. Sanders, 775, 854.
Dewey v. Detroit, 175.

V. Detroit G. H. & M. Ry. Co.,
1012, 1015, 1043.

V. Leonard, 842.
Dewire v. Bailey, 870.
Dexter v. Alfred. 074.

V. Cole, 601.

V. Harrison, 484, 485.

V. Riverside & O. Mills, 690, 758.

V. Spear, 360, 494, 513, 514.
DextervlUe Manuf g & Boom Co. v.

Case, 208.
De Yampert v. Johnson, 131.
Deyo V. New York Cent. R. Co., 1085.
Dhein v. Beuscher, 669, 671.
Dicas V. Lord Brougham, 119.
Dick V. Railroad Co., 951.
Dickerman v. 'St Paul Union Depot

Co., 1087.
Dickey v. Franklin Bank, 725.

V. Maine Tel. Co., 145.
Dickins v. New York Cent. R. Co.,

3:u.

Dickinson v. Barber, 157, 159, 482.

V. Boyle, 70. 389, G93.

V. Grand .Junction Canal Co., 758.

V. Hart. 379.

V. Merchants' Elevator Co., 710.

V. Railway Co., 334.

V. Worcester, 760.
Dickinson's Case. 963.
Dicks V. Brooks, 551, 552, 553.
Dickson V. Chicago, R. I. & P. R. Co..
226.

Dickson y. DidLSon, 636.

y. Omaha & St. L. Ry. Co., 921,
922.

y. Renter's Tel. Co., 563, 506, 567,
900.

y. State, 482.

y. Waldron, 243, 263.
Dieboldt v. United States Baking Ck>.,

996.
Diehl v. Friester, 417.
Dierks y. Commissioners, 783, 784.
Dietrich y. Ely, 399.
Dietus y. Fuss, 726, 727.
Dill y. McCloskey, 411.
Dillard y. Collins, 512, 524.
Dilley y. Wilkes Barre & K. P. Ry.

Co., 787.
Dillingham y. Crank. 206, 211, 864.

y. Teeling, 893.
Dillon y. Acme Oil Co., 758.

y. Bumham, 164.

y. Connecticut R. R. Co., 197.

y. Washington Gas Light Co., 186.
Di Marcho v. Builders' Iron Foundry,

943.
Dimmitt y. Railway Co., 242.
Dimock y. U. S. Nat Bank, 741.
Dingle y. Hare, 586.
Directors, etc., v. Jackson, 931.
Directors, etc., of Central Co. y. Kisch.

580, 596.
Directors, etc., of Swindon Water-
works Co. y. Proprietors of Wilts &
B. Canal-Nav. Co., 755.
Distler v. Long Island R. Co., 964.
District of Columbia v. W. G. Co., 850.

V. W^oodbury, 177.
Ditberner v. Chicago, M. & St P. By.

Co., 1055.
Ditcham v. Bond, 450.
Dittman y. Repp, 805, 806.
Dittman Boot & Shoe Co. y.. Keokuk

& N. W. R. Co., 1078.
Dixon V. Allen, 549.

V. Bell, 266, 406, 852, 907, 932.

V. Clow, 79. 677.

y. Duke, 564.

V. Dunham, 1069.

V. Holden, 353.

V. Parsons, 544.

V. Pluns, 837, 939, 963.

y. Railway Co., 320, 1037, 1042.

CASES CITED.

1135

[Vol. 1 comprises pages 1~652« inciusiye; toI. 2 the residue.]

Dixon y. Smith, 542.

y. White Sewing Mach. Cto., 65G,
602.
Doane y. Anderson, 629.
Dobbin V. Cordiner, 220.
Dobbins v. Brown, 850, 943.
Dobell y. Steyens, 578, 597.
Dobson y. Cothran, 461.

y. Thornistone, 506.
Dockerty v. Hntson, 856.
Dr. Groenyelt*s Case, 912.
Dodge y. Colby, 103, 552, 553.

y. County Commissioners, 142, 143,
351.

y. Davis, 696, 700.

y. Essex Co., 140.

y. Granger, 174.
Doe y. Bridges, 98.

y. Roe, 468.
Doedt y. Wiswell, 331.
Doellner y. Tynan, 148.
Doering y. State, 428.
Doggett y. Emerson, 570.

V. Richmond & D. R. Co., 375, 972.
Doherty y. Allman, 704.

y. Inhabitants of Braintree, 179,
187.

V. Lord, 389.
Dolahanty y. Lucey, 660.
Dolbeer y. Livingston, 40, 273.
Dole v. Ersklne, 203, 442.

y. Insurance Co., 76.

y. Lyon, 548.
Dollard v. Roberts, 462, 870.
DoUoff v. Curran, 319.

v. Inhabitants of Ayer, 174.
Dolloway v. Turrill, 518.
Dolph v. Ferris, 855.
Donaghue v. Gaffy, 371, 522.
Donahoe v. Richards, 118, 120, 461.

V. Wabash, St. L. & P. Ry. Co.,
150, 170.
Donald v. Chicago, B. & Q. B. Co.,
314.

v. Suckling. 725.
Donaldson y. Milwaukee & St P. Ry.

Co., 962.
Donford y. EUys, 687.
Donlin v. McQuade, 729.
Donnegan v. Erhardt, 922.
Donnell v. Jones, 349, 380, 392.
Donnelly v. Tripp, 181.

Donoghue y. Hayes, 482.
Donohue v. Woodbury, 316.
Donovan y. Laing, 244.

v. McAlpin, 127, 136. 13a

v. Oakland & B. Rapid-Transit
Co., 233, 235.
Dooley v. City of Meriden, 178.

y. Mobile & O. R. Co., 197.

y. 17,500 Head of Sheep, 4, 212.
Dooling v. Budget Pub. Co., 554.
DooUttle V. Shaw, 730.
Dooly V. Stringham, 702.
Dooner y. Delaware & H. Canal Co.,

361, 945, 993, 995.
Doran v. Eaton, 578, 593, 600.

v. Flood, 922.
Dorchester & M. Bank v. New Eng-
land Bank, 285.
Dorgan v. Telegraph Co., 899.
Dorman y. Ames, 405, 950.
Dornell v. Jones, 629.
Dorr v. Beck, 362.
Dorris v. Sullivan, 690.
Dorsey y. Moore, 699, 701, 702.
Dosdall y. Olmsted Co., 184.
Doss V. Missouri, K. & T. R. Co., 10S2.
Dotly v. Campbell, 579.
Doty V. Chicaijo, St. P. & K. C. Ry.

Co., 319.
Dougan y. Champlain Transp. Co.,

949, 1010.
Dougherty v. Railroad Co., 957.

v. Stepp, 660-662.
Doughty y. Penobscot L. D. Co., 1(M6.
Douglas v. Douglas, 495.

V. Hannibal & St. J. R. Co., 1075.

v. Shumway, 685.

V. Sioux City St. Ry. Co., 1084.
Douglass V. Kraft, 739.

V. State. (>7r>.

y. Stephens, 255, 278.
Dovaston v. Payne. 689.
Dow v. King, 34<5.

v. Memphis & L. R. Co., 207, 208.
Dowd V. Boston & A. R. Co., 1(H0.

V. Chicago, M. & St. P. Ry. Co.,
1082.
Dowdell V. King, 384. 465.
Dowdy V. Georgia R. Co., 944.
Dowell y. Guthrie, 201, 851, 935.
Dowling y. Allen, 10O4.
Downer v. Lent, 123.

1136

CASES CITED.

[Vol. 1 eomprifies pages 1-652, inclnsiye; vol. 2 the residue.]

Downey v. Pittsburg, A. & M. Trac-
tion Co., S>42.

V. Sawyer, 1006, 1054.
Downing v. City of Oskaloosa, 744,
803.

V. Diaz, 656.

V. McPadden, 120.

V. Mason Co., 183.
Downs V. Finnegan, 27, 708.

V. Hawley, 524.
Downshire v. Sandys, 703.
Dox V. Postmaster General, 110.
Doyle V. Clilcago, St P. & K. C. Ry.
Co., 858.

V. Fltchburg R. Co., 300, 1079.
1081.

V. Jessiip, 452.

V. Kiser, 1077.

V. Lord, 227.

V. Railway Co., 227, 244, 411, 8:iO,
831, 948, 1015.
Dozier v. Pilot, 715.
Drake, Ex parte, 344.

V. Chicago, R. I. & P. Ry. Co., 761.

V. Gilmore, 334.

V. Grant, 594.

V. Kiely, 73, 377, 382.

V. Ix)well, 766, 837.

V. Pennsylvania R. Co., 190.

V. Shorter, 718.

V. State, 522.

V. Wells, 683.
Draper v. Fulkes, 218, 731.
Drax V. Scroope, 917.
Dressel v. Shippman, 482, 485, 545.
Dresser v. Blair, 446.
Drew V. Cole, 762.

V. Hicks, 792.

V. New River Co., 145, 186.

V. Peer, 247, 263.
Drewell v. Towler, 690.
Dreyfus v. Aul, 612.
Drieh v. Davenix)rt, 460.
Driggs V. Burton, 634.
Drinkhorn v. Bubel, 440, 442.
Drinkwater v. Dinsmore, 381, 309.

V. Sauble, 802.
Driscoll V. City of Taunton, 208.

V. Com., 914.

V. Market St Cable R. Co., 929.
Drohan v. Lake Shore & M. S. Ry. Co.,

mi.

Drown v. Allen, 549.

V. Smith, 701, 702.
Drummond v. Pigou, 606.
Drymala v. Thompson, 993.
Dubaeh v. Hannibal & St J. R. Co.,

787.
Dube v. City of Lewiston, 1043.
Duberley v. Gunning, 466.
Dublin, W. & W. R. Co. v. Slattery,

884, 942, 956, 967, 971, 1087.
Dubois V. Beaver, 668.
Du Bois V. Decker, 909, 914, 978.
Dubois V. Keats, 60&

V. Sistare, 707.
Du Bois Borough v. Baker, 471.
Dubose V. Marx, 214.
Du Bost V. Berresford, 398w
Duck V. Mayeu, 345, 346.
Duckett V. Pool, 449.
Dudley v. Briggs, 554.

V. Mayhew, 97.

V. Westcott, 985.
Dueber Watch-Case Manurg Co. v.

E. Howard Watch Co., 648.
Duff V. Hutchinson, 315, 320.

V. Williams, 597.
Duffield V. Rosenzweig, 656.
Duffles V. Duffles, 468.
Dufour V. Anderson, 670.
Dugan V. Chicago, St. P., M. & O. Ry.

Co., 942.
Dugan V. St. Paul & D. R. Co., 925.
Duggan V. Baltimore & O. R., 262, 279,
368, 423.

y. Wright, 707, 715, 726, 728.
Duinneen v. Rich, 683.
Duke V. Harmer, 522.

V. Missouri Pac. Ry. Co., 399.

V. Vincent, 679.
Duke of Brunswick v. Harmer, 481.

V. King of Hanover, 114.
Diunas v. Stone, 1020.
Dumesnil v. Dupont, 802, 804.
Dumont v. Kellogg, 82.

V. Smith, 383.
Dun V. City Nat. Bank of Birming-
ham, 269, 271, 285, 303.

V. HaU, 264, 475.
Dunbar v. Railway Co., 308.

V. Tirey, 310.
Duncan v. Com., 200.

V. Findlater, 13a

CASES CITED.

1137

[Vol. 1 compriseB pages 1-662, indn^ve; vol. 2 the residue.]

Duncan v. Griswold, 553, 612, 625.

V. Hayes, 781.

y. Markley, 413.

y. Missouri Pac. R. Co., 924.

y. Spear, 713.

y. Thwaites, 632.
Buncombe y. Felt, 701, 703.
Dundee Mortg&ge & Trust Inv. Ck).

y. Hughes, 133, 905.
Dunliam y. Powers, 526.

y. Rackllfl, 951.
Dunham Towing & Wrecking Go. y.

Dandelin, 968.
Dunklee v. Goodenough, 323.
Dunlap y. Glidden, 56, 127.

y. Hedges, 703.

y. Knapp, 127, 128.

y. Linton, 338, 454.

y. Northern Pac. Ry. Co., 1079.

y. Snyder, 800.
Dunleavy y. StoclEwell, 843.
Dunlop y. Munroe, 137, 138.
Dunman y. Bigg, 543.

y. Gulf, C. & S. F. R. Co., 754.
Dunn y. Birmingham Canal Nay. Co.,

im.

y. Burlington, C. R. & N. R. Co.,
402.

y. City of Austin. 805.

y. Grand Trunk Ry. Co., 1084.

y. Haftford, etc., Co., 46.

y. Mellon, 128, 136.
Dunning y. Austin, 726.

y. Bird, 152, 153.
Dunshach y. Hollister, 801.
Dunseatb y. Pittsburg, A. A M. Trac-
tion Co., 860.
Dunsee y. Norden, 488.
Dnnstan y. Higgins, 322.
Dunston y. Paterson, 426.
Dunton y. Great Northern Ry., 5W6.
Dupee y. Lentine, 445.
Durand y. Borough of Anson la, 140.
Durant v. Lt^xington Coal Min. Co.,

822. 923, 92(5.
Durgln y. Kcimett, 853, 923.
Duryea y. Smith, 681.
Dusenbury v. Kielly, 36.
Dushane y. Benedict, 399.
Dustin y. Cowdry, 688.
Dusy y. Helm, 123.
Duthie y. Town of Washburn, 176.

LAW OP TORTS— 72

Dutro y. Wilson, 703.
Dutton y. Gerrish, 227.
Duyal y. Davy, 549.

y. Hunt, 941.
Duyall V. Peach, 246.

y. Waters, 705.
Dwlght y. Germania Life Ins. Co.,

952.
Dwinelle y. New York Cent. & 11. R.

R. Co., 241, 244, 279.
Dwyer y. American Exp. Co., 1043.

V. Railroad Co., 400, 416.
Dyckman y. Valiente, 733.
Dye y. Leatherdale, 680.

y. Virginia Ry., 1087.
Dyer y. Morris, 511.
Dygert y. Bradley, 53.

V. Schenck, 765, 771, 792.
Dynamite Case, 867.

E

Eagan y, Murray, 457.
Eagar y. Dyott, G08.
Eager y. Grimwood, 459.
Eagle Packet Co. y. De Fries, 318.
Eaglesfield y. Marquis of Londonder-
ry, 289. 582.
Eagleton y. Gutteridge, 675.
Eakln y. Brown, 226.
Eames y. Prentice, 662.

V. Whittaker, 539.
Eanes y. State, 428.
Earing v. Lansingh, 878.
Earl y. Crouch, S.S9.

y. De Hart, 802.
Earle y. Holderness, 743.
Karll y. City of Chicago, 689.
Earl of Bristol v. Wilsmore, 728.
Earl of Buckinghamshire y. Dniry,

164.
Earl of Dartmouth y. Spittle, 671.
Earl of Leicester y. Walter, 548.
Earl of Lonsdale y. Nelson, 746, 800.
Earl of Manchester y. Vale, 407.
Earl of Northampton's Case, 483.
Earl of Ripou v. Hobart, 804.
Karp V. Lee, 802.
Eason V. Westbrook, 639.

V. Railroad Co., 991, 992, 1035.
Eastern Counties Ry. y. Broom, 45.

1138

CASES CITKD.

[Vol. 1 comprises pa^es 1-662, inclusive; vol. 2 the residue.]

Eastin y. Bank of Stockton, 609.
Eastman v. Amoskeag Manuf'g Oo.,
789, 797.

V. Commissioners, 352.

V. Grant. 344.

V. Meredith, 177, 182.

V. Rice. 677.

V. Richmond Highway Board. 090.
Easton v. Railroad Ck>.. 208, 791.
Easton & A. R, Co. v. Centi'al R. Co.,

756.
East Rivei Gaslight Co. v. Donnelly,

118.
East St. Tiouis Connecting Ry. Co. v.

O'Hara. 824, 802, 929.
East Tennessee, V. & G. Ry. Co. v.
Aiken, 978.

V. Bridges. 1028.

V. Fleetwood, 402, 1091.

V. Hall, 72.

V. Hesters, 72.

V. Hyde, 1093.

V. Kane. 242, 200. 948.

V. Kelly, 1070.

V. Lilly, 334.

V. Lockhart. 37a

V. Markens, 982.

V. Perkins. 994.

V. Sellers, 807.

V. Turvaville, 1006.

V. Watson, 1088.
East Tennessee & W. N. C. R, Co. v.
Collins, 908.

V. Winters. 105, 873.
Eastwood V. Holmes, 484.
Eaton V. Avery, 588.

V. Hill, 103.

V. Johns, 496.

V. Lyman, 366.

V. Railway Ca, 68, Zi3, 234, 237.
71)1 .

V. Sims, 3.')2.

V. Winnie. 571. 590. 597.
Eberly v. Rupp, 008.
Eby V. Lebanon Co.. 230.
Eccles V. R.idam, 519.

V. Union Pac. Ry. Co.. 319.
Echols, Ex parte, 351.
Eckensberger v. Amend, 878.
Eckerson v. Crippen, 083.
Bckert v. Railroad Co.. 150. 201. 907.

Eddy V. Adams, 1012.

v. Lafayette, 206, 364, 844, 84a

V. Powell, 860.

V. Prentice, 993, 995.

V. Rogers, 1050.

V. Wallace, 381.
Edelmann v. Transfer Co., 45.
Eden v. Lexington & F. R. Co.. 327.
Edgar v. McCutchen. 511.
Edgerly v. Whalan. 727. 735.
Edgerton v. Huff, 755.

Y. New York & H. R. Co.. 939.
Edgington v. Fitzmaurice, 580, 589.
Edison Electric Light Co. v. Buck

eye Electric Co., 355.
Edmondson v. City of Moberly. 789,

y. Machell, 449. 450. 452, 454.

V. Nuttal, 743.

V. Railroad Co.. 237.
Edsall v. Brooks. 533.
Edwards v. Clay, 337.

y. Common-Council of Village oX
Three Rivers, 72. 3.61, 868.
947.

y. Davis. 349.

V. Ferguson, 120.

y. Halinder, 688.

y. Kansas City Times, 522.

V. Railroad Co., 45, 1CS8, 169, 224,
254. 279, 880.

V. San Jose Print. &. Pub. Soc.,
503, 507, 548.

y. Society, 5.'i7.

y. Sonoma Valley Bank, 707.

y. Woodbury, 338.

V. Wooton, 482.
Eells y. St. Louis. K. & N. W. Ry.

Co., 303.
E. G. Blackslee Manuf'g Co. y. E, G.

Blackslee's Sous Iron Works, 759.
Eggleston v. Railroad Co.. 681. 683.
Egjrman v. St Louis. A. & T. H. R.

Co., 880.
Egyptian Monarch. The. 1041.
Ehnicke v. Porter, 1027.
Ehrgott V. City of New York. 181, 374.

377, 378, 381.
Ehrisman v. Railway Co., 883.
Ehrraan, The Virginia. 214.
Ehrman y. Railroad Co.. 403.
Eiehert y. Schaffer. 321.

CASES CITED.

1139

[Vol. 1 comprises pugea 1-652, inclusive; vol. 2 the residae.]

Eighmy v. Union Pac. Ry. Co.. 1)14.
Ellenberger v. Protective Mut. Fire

Ins. Co., 270.
Eisenhart v. Ordean, 302.
Eklns V. Trcsham, 578.
Elder v. Bemis, 118.

V. Lykens Val. Coal Co.. 66.
Eldridge v. Adams. 735.

V. Atlas Steamship Co., 1028.

V. Minneapolis & St. L. R. Co..
1089.
Electric Ry. Co. v. Shelton, 8(V4.
Blerick v. Reid, 579.
Elgin V. Kimball, 178. 179.
Ells V. Barlow. 602.
Blklngton v. Holland, 017.
Blkins V. Boston & A. R. Co.. 872,
882.

V. McKean, 908.
Ellegard v. Ackland. 260.
EUet V. St. Louis, etc., Co., 70.
BUinger v. Philadelphia. W. & B. R.

Co., 1092.
Ellington v. Beaver Dam Lumber
Co., 1038.

V. Ellington, 452--ir»4, 4.56, 457.

V. Taylor, 484.
Elliot V. Brown, 442.

V. Railway Co., 10."i<;.
Blllotson V. Foetliam, 7(J7. 774.
Elliott V. Allen. 213, 429.

V. Hall, 895.

V. llayden, 342, 721.

V. .Jackson, !297.

V. Xlcklin, 458.

V. l»hiladelphia, 174.

V. l»orter, 342.

V. Pray, 895.

V. Railway Co.. 95(;. 9."kS. 966.

V. Rossell, 1062.

V. Van Buren, 935.
Ellis V. American Tel. Co., 302.

V. Buzzell, 522, 935.

V. Clemens, 754.

V. Cleveland, 200.

V. Gas Co., 238.

V. Great Western R. Co.. 884.

V. Iowa City, 140.

V. Kansas City, St. J. & C. B. R.
Co.. 704.

V. liOftus Iron Co., 855.

V. Nowbrough, 295, 595.

Ellis V. Sheffield Gas Consumers' Co.»
186, 233.

V. Turner, 251.

y. Whitehead, 486, 519^ 520.

V. Wire, 740.

V. Wren, 601.
Ellis' Estate. In re, 322.
Ellison v. Barker. 502.

V. Commissioners, 804, 806.
Elmer v. Locke, 1052.
Elsee v. Smith, 606, 600, 613.
IClwell V. Martin, 165.
Klwes V. Maw. 702.
Ely V. Davis, 625.

V. Ehle, 665.

V. Parsons, 138, 139.

V. Railway Co., 040.

V. Supervisors, 802.

V. Thompson, 425.
P^lyton Land Co. v. Mingea, 083.
Embrey v. Owen. 70. 85. 755.
I<]niorson v. Cochran, (K)8, 624.
Emery v. Chesley, 421.

V. Ginnan. 612, 634.

V. Gowen, 452, 453.

v. Hapgood, 425.

V. Lowell, 176.

V. Minneapolis Industrial Expo-
sition, 837. 800. 955.

V. Raleigh, 746.
Emery's Case, 115.
Emma Cotton-Seed Oil Co. v. llaU'.

1017.
Emmens v. Pottle, 482.
Enimerson v. Marvel, 511.
Km met t v. Lyne. 420.
Emory v. Hazard Powder Co., 807.
Empire Tea Co. v. Wamsutta Oil Co..

1008.
Emry v. Roanoke Nav. & Water-

Power Co., 3, 666, 824, 826, 849.
Enders v. Beck, 220.
Endsley v. Johns, 590. 596.
Enfield v. Colbum, 591.
Engel V. Eureka Club. 232. 234. 235.

V. Scott & H. Lumber Co.. 712.

V. Smith, 970.
Engelhardt v. State, 437.
England v. Bourke, 523.

V. Cowley, 706. 719. 723, 727.
Engleken v. Hilgor, 166.
English V. Major. 621.

1140

CASES CITED.

[Vol. 1 comprises pagres 1-662, inclusiTe; vol. 2 the residue.]

English T. Powell, 733.

V. Progress Electric Light & Mo-
tor Co.. 807.
Engstrom v. Sherburne, 638.
Enos V. Enoa. 519, 520. 549.
Enright v. Toledo, A. A. & N. M. Ry.

Co., 192.
Ensley v. NashTllle, 694.
Ensley Ry. Co. v. Chewuing, 824.
Entick V. Carrlngton, 660, 662.
Bntrlck v. Carrlngton, 124.
E. O. Stanard Milling Co. v. White

Line Cent. Transit Co., 299. 1070.
Episcopal Academy y. Philadelphia,

188.
pjpstein V. Meyer Bros. Drug Co., 710.
Erber v. Dun. 499, 541.
Erhardt v. Board. 691.
Erickson v. Bennet, 597.

V. Duluth & I. R. R. Co.. 930.
V. Fisher, 596.

V. St. Paul & D. R. Co.. 1001.
Krie V. Schwingle, 188.
Erie City Iron Works v. Barber, 169.
Rrie City Pass. Ry. Co. v. Schuster,

170, 988.
Erie Tel. & Tel. Co. v. Grimes, 975,

979.
Ernst V. Hudson R. R. Co., 929.
Erving v. City of New York, 118.
Erwin v. Dezell. 505.
y. Olmstead. 668.
ICshleman v. Martic Tp., 762.
Eskridge's Ex'rs v. Cincinnati, N. O.

& T. P. Ry. Co., 824.
fjslava V. Jones. 130.
Esmay v. Fanning, 726.
Esrey v. Southern Pac. Co., 339.
V. Southern Pac. R. Co., 197.
Essex County Electric Co. v. Kelly,

1010.
EsRon V. Wattier. 787.
Estell V. Myers, 594.
Estelle V. Village of Lake Crystal, 184.
Estey V. Smith, 55, 773.
Estill V. Fort. 222.
Esty V. Baker, 665.
V. Wilmot, 632.
Etchison v. Pergerson. 516, 521, 539.
Eten V. Luyster, 50, 376, 377.
Etter V. O'Nlel. 132.
Euler V. Sullivan. 777.

Evans v. Adams Exp. Co., 931.
V. Carbon Hill Coal Co., 1041.
V. Chamberlain, 990, 1009.
V. City of Huntington, 402.
V. Collins, 566.
V. Edmonds. 563.
V. Elliott. 680.
V. Fertilizing Co., 805.
V. Harries, 387.
V. Mason, 730.
V. Philadelphia Club, 149.
V. Railroad Co., 296, 790, 791, 797,

881, 1039, 1074, 1088.
V. Reading Chemical Fertilizing

Co., 806.
V. Waite, 203.
V. Walton, 450, 451.
Evans Co. v. Reeves. 634.
Evansville & C. Ry. Co. v. Keith.
1066.
V. Wolf, 988.
Evansville & I. R. Co. v. Darting,

1092.
Evansville & R. R. Co. v. Bamefi,
1008, 1020, lasi.
V. Henderson, 1023, 1039.
V. Maddux. 261.
Evansville & T. H. R. Co. v. Claspell,
241, 242.
V. Griffin, 890. 894.
V. Holcomb. 391.
V. Krapf, 860, 942.
V. McKee. 253.
V. Talbot, 629.
Evarts v. Kiehl. 527.

V. St. Paul, M. & M. Ry. Co., 198.
975.
Evelyn v. Raddish, 704.
Evening Journal Ass'n v. McDermott,

169.
Everett V. City of Council Bluffs.
177, 789.
V. Coffin. 734.

V. Henderson, 425, 426, 606, 630.
V. Oregon, S. L. & U. N. Ry. Co..
890, 1081.
Evers v. Jjong Island City. 176.
Every v. Smith, 690.
Evison V. Chicago, St. I\, M. & O.

R. Co.. 92,-).
Eviston V. Cramer, 169, 395, 536, 537.
Ewald V. Chicago & N. Ry. Co., 261.

CASES CITED.

1141

[Vol. 1 cora prises pages 1~662» inclusive; vol. 2 the residue.]

Bwan Y. Lippincott, 1034, 1036.
Bwbank y. Nutting, 730.
Swell V. Greenwood, 745.
Swing y. Ainger, 500.
y. Blount. 739.
y. Rourke. 692.
Bxcelsior Brick (^o. v. Village of

Hayerstraw, 357.
Excelsior Electric Go. y. Sweet, 946,

954.
ESxchange Ins. Ck>. y. President of

Delaware & H. Canal Co., 1058.
ESxchange Nat. Bank v. Third Nat

Bank, 284. 285.
Express Co. v. Caldwell, 302, 306,
307.
y. Copeland, 535.
y. Kountze. 1063.
y. Smith, 65.
Byre y. Oarlick, 477.

y. Jordan. 228.
Eyres v. Sedgpwicko, 127.
Bysaman y. S.uall, 699.

F

Fabens y. Bank, 28.').
Fadden y. Satterleo. 338.
Fagan y. Knox. 619.

y. Scott. 681.
Fahn y. Reichart, 842.
Fahr y. Manhattan By. Co., 064.
Fahy y. Fargo, 283.
Falrchild y. Dunbar Furnace Co.,
695.

y. Railway Co., 308.
Fairhurst y. Liyeipool Ass*n, 218.
Faison y. Alabama & V. Ry. Co.,

1072.
Fake y. Addicks, 857.
Falk y. Fletcher, 739.

y. Raihroad Co., 964, 1088.

V. U. S. 112.
Falkner y. Wright, 1062.
Fallon V. Manning, 714.
FaUoon y. Schilling, 772.
Falhs y. San Francisco & N. P. R.

Co., 1087.
Fanning y. Chace, 5(V4.
Fanson v. Linsley, 41. 297.
Farabow y. G^iHin, 698.

Farber y. Missouri Pac. Ry. Co., 262,

1081.
Farebrother y. Ansley, 286.
Fargis v. Walton, <«3.
Fargo Gaa & Coke Co. y. ITargo Gas

& Electric Co., 581.
Faribault y. Sater, 597.
Faris y. Hoberg, 894.
Farley y. Picard, 962.
Farly y. Danks, 606. 607.
Farmer, The, y. McCraw, 820.
Farmer y. Crosby, 366, 628, 634.

y. Sir Robert Darling, 623.
Farmers' Loan & Trust Co. y. Green
Bay, W. & St. P. R. Co., 208.
y. Kansas City, W. & N. W. R.

Co., 207.
y. Northern Pac. R. Co., 93, 358,

642-644.
y. Walworth, 47.
y. Winona & S. W. Ry. Co., 207.
Farmers' Stock-Breeding Ass'n y.

Scott. 563, 569, 592.
Farmers* & Mechanics* Bank y.
Butch^^' & Droyers* Bank,
253.
y. Champlain Trnusp. Co., 300,
1069.
Farnham y. Pierce, 126.

y. Railroad Co., 301, 306.
Farnsworth y. Lowery, 708, 720.
Farnum y. Concord, 183.
Farr y. Hunt, 743.
Farra y. Adams, 1061.
Farrand y. Aldrich, 497, 549, 550.

y. Marshall, 751.
Fiurant y. Barnes, 573, 866, 892, 908,

1034.
Farrar y. Beswick, 733.

y. Brackett, 615, 625, 629.
y. Bridges, 584.
y. Rollins, 718.
FaiTell y. Freidlander, 292.

y. Waterbury Horse R. Co., 811.
Farrer y. Close, 644.
Farwell y. Boston & C. Ry. Co., 1042.
y. Boston & W. R. Corp., 275,
1030, 1031.
Fassett, In re, 14.
Fat nail y. Courtney, 432.
Faulk y. Central R. & B. Co., 971.
Fausler y. Parsons, 135.

1142

CASKS CITED.

[Vol. 1 comprises pages 1-652, inclus&Te; vol. 2 the residue.]

Faweet v. Beavres. 449.

Fay V. Davidson, 293, 851, 1091.

V. Minneapolis & St. Tj. Ry. Co.,
995, 1001, 1018.

V. Pacific Imp. Co., 902.

V. Parker, 395.

V. Prentice, 84, 779.

V. Whitman. 777. 778.
Feather v. City of Reading, 970.
Featherston v. President, etc., of New-
burgh & C. Tmnpike Road, 323.
Featherstonhaugh v. Johnston, 727.
Feely v. Jones, 523.

V. Pearson Cordage Co., 1017.
Feeney v. Bartoldo, 353. 805.
Felze V. Thompson. ;{t>6.
Felch V. Allen, 1011.
Felcher v. McMillan, 728, 737.
Felkner v. Scarlet, 454.
Fell V. Northern Pac. R. Co., 82*>, 823.
Feller v. Hodgdon, 88.
Felt V. Amidon, 204.

V. Vicksburg, S. & P. R. Co., 762.
Feltham v. Cartwright. 08.j.
Felton V. Deaii, 232.
FenneU v. Seguin St Ry. Co., 921.
Fenneman v. Holden, 873, 079.
Fennings v. Lord Grenville, 733.
Fent v. Railroad Co., 72, 77, 78, 374,

376.
Fenton v. Dublin Steam Packet Co.,
229, 2:W.

V. Sewing- Mach. Co., 169.
Fen wick v. Bowling, 562.

V. Grimes, 5K5, 584.
Feoffees of Herlot's Hospital v. Ross,

188.
Feray v. Foote, 488.
Fergason v. Railway Co., 407.
Ferguson v. Arnow. 617.

V. Brooks, 219, 220, 222.

V. CoiuinbiLs & R. R. Co., 9m.

V. Earl of KinnouU, 124, 125.

V. Firmenich Manuf'g Co., 797.

V. Miller, a^O.

V. Neilson, 220, 222, 256, 905.
Fcrgiisson v. Brent, 1063.
Feruald v. Chase, 723.
Fernsler v. Moyer, 452, 454.
Feix) V. Railroad Co., 965.

V. Ruscoo, 524.
Ferren v. Old Colony R. Co., 871, 102:$.

Ferrin v. Symonds, 662.

Ferris v. Wellborn, 754.

Fertich v. Michener, 429.

Fertilizing Co. v. Hyde Park, 769, 774,

776.
Fette V. Lane, 724.
Fetter v. Beale, 325, 405.
Flck V. Railway Co., 253.
Fidelity Title & Trust Co. v. People's

Natural Gas Co., 315.
Fidler v. Delavan, 523.
Field V. Albemarle Co., 182.

V. Barling, 807.

V. Colson, 386, 491, 503.

V. Davis, 950.

V. Sims. 322.
Fields V. Ciu-d, 502.

V. Grenils, 440.

V. Stokley, 802.

V. Williams, 663, 670, 693.
Fifth Ave. Bank v. Forty-Second St.

& G. St. F. R. Co., 172.
Fifth Nat. Bank v. New York El. R.

Co., 410.
Filbert y. Delaware & H. Canal Co.,

1(H6.
Fillmrii v. People's Palace & Aquar-
ium Co., 854.
Filer v. New York Cent. R. Co., 957.

V. Smith, 422, 429.
Filkins v. People, 441.
Filllter v. Phlppard; 841.
Fllson V. Crawford, 777.
Finance Co. of Pennsylvania r.

Charlestown, C. & (\ R. Co., 207.
Finch V. Board of Education, 182.

V. Great Western Ry. Co., 688.
Flndlay v. McAllister, 638.

V. Smith, 700, 702.

V. Western Union Tel. Co., .'504.
Flndley v. City of Salem, 17S.
Fine Art Soc. v. Union Bank, 719,

722, 724.
Flnley v. Cudd, 738.

V. Gutter Co., 425.

V. Richmond & D. R. Co., 993,
1009, 1048, 1052.
Finn V. City of Adrian, 390.

V. Frlnk, 605, 623.

V. Western Ry. Corp., 715.
Finnogan v. Fall Rlyer Gas Works
Co., 849.

CASES CITED.

1143

[Vol. 1 comprises pages 1-652, inclnsiye; vol. 2 the residue.]

tfnhegBJi V. Chicago, St. P.» M. & O.

Ry. Co., 958, 1081.
Finney v. Harding, 738.
Fire Ins. Patrol v. Boyd, 187, 188.
Firemen's Ins. Co. of Mobile v. Coch-
ran, 722.
Firestone v. Rice, 418.

V. Werner, 575.
First Baptist Church r. Schenectady
& T. R. Co., 767.

Y. Syms, 354.
First Nat Banlc v. Brown, 707.

V. Clements, 134.

V. Deal, 590.

V. B'ourth Nat. Bank, 134.

V. Indianapolis Piano Manuf'g
Co., 343.
'V. Kickbusch, 727.

V. Lynch, 364.

V. North, 600.

V. Northern R. Co., 717.

V. VlUegra. 751.

V. Wilbur, 715.
First Presbyterian Congregation of

Easton v. Smith, 182.
Firth V. Bowling Iron Co., 65, 853,
923.

V. Veeder, 658.
Fischer v. Bonner, 844.

v. Langbein, 425.
Fish y. Chapman, 1057.

y. Cleland, 581.
, y. Dodge, 129, 749. 767. 796.
' V. Ferris, 163.

V. Folley, 408.

V. Kelly, 905.
Fishback y. Miller, 589.
Fish Brother's Wagon Co. v. LaBelle

Wagon Works, 147.
Fisher v. Boston, 150, 181.

V. Brlstow, 13, 609, 610.

V. Forester, 621.

y. McGirr, 425.

V. Mellen, 504, 5G5.

V. Metropolitan Life Ins. Co., 191.

y. Nlccols, 914.

y. Prince, 743.

y. Raflroad Co., 873, 964, 1091.

y. Rankin, 233.

y. Rochester^ 690.

y. Steward, 659.

y. Thirkell, 224, 226.

Fishkill Say. Inst y. National Bank,

169, 170.
Fisk y. Newton, 1070.
Fist y. Fist, 321.
Fitch y. Lemmon, 523.

y. New York, P. & B. R. Co., 664.
Fitler y. Fossard, 44.
Fitter y. Veal, 36, 409.
Fitts y. Cream City R. Co., 94a

y. Hall, 161, 164.
Fitzgerald y. Connecticut River Paper
Co., 201, 871, 1024.

y. Fitzgerald, 434.

y. Fitzgerald & Mallory Const
Co., 168.

y. Northcote, 444.

y. Quann, 219, 220.

y. liedfield, 505.

y. St Paul, M. & M. R. Co., 985.

y. Town of Weston, 873.
Fitz John y. Mackinder, 40, 608, 613.
Fitzpatrick y. Railroad Co., 366, 1030.

V. Slocum, 136.
Fitzsimmons y. City of Taunton, 997.

y. Raihx)ad Co., 260, 265.
Fivaz V. NichoUs. 190, 607.
Fixen y. Blake, 602.
Flaherty v. Minneapolis & St L. Ry.
Co., 213, 216.

V. Moran, 773.
Flanagan y. Newman, 352.

V. Raih-oad Co., 389, 945.
Flanders y. Chicago, St. P., M. & O.
R. Co., 402, 948, 998.

y. Colby, 654.

y. Thomas, 737.
Fleckenstein y. Dry-Dock, B. B. &

B. R. Co., 861.
Fleeming y. Orr, 856.
Fleener v. State, 11.
Fleet y. Hollenkemp, 908.
Fleischner v. Cable Co., 302, 304, 899.

y. Citizens' Real-Estate & Iny. Co.,
SOG.
Fleming v. McDonald, 342.

V. Railroad Co., 754, 7.">0. 1086.
Flemington y. Smithers, 459.
Flemming y. Ball, 150.

y. Smith, 166.
Flenniken v. Marshall. 173.
Flesh V. Lindsay, 222.
Fletcher, Ex parte, 657.

1144

CAS£S CITED.

[Vul. 1 compritics pagcii 1-662, iudusive; vol. 2 the residue.]

Fletcher v. Cole, 195.

V. Evans, G81.

V. Fletcher, 429, 728.

V. Livingston, 673.

V. People, 444.

V. Rylands, 771. 833, 850.

V. Smith, 833.
Flicklnger v. Shaw, 686.
Flight V. Thomas, 804.
Flike V. Boston & A. R. Co., 1039.
Flinn V. New York Cent. & H. K. R.
Co., 844, 845.

V. State, 33.
Flint V. Norwich & N. Y. Transp. Co.,
278.

V. Russell, 777.
Flint & P. M. Ry. Co. v. Weir, 108(J.
Flitcraft v. Jeuks, 516.
Flockton V. Hall, 314.
Flood V. Van Wormer, 354.
Flora V. Russell, 423, 614, 617, 622.
Florida v. Morrison, 560.
Florida South. R. Co. v. Hirst, 961,

1080.
Flower v. Adam, 977.

V. Pennsylvania R. Co., 991.
Floyd V. Barker, 117, 527.

V. Brown, 346.

V. Philadelphia & R. R. Co., 908.
Fluker v. RaiUroad Co., 449, 4.50.
Fluminerfelt v. Flummerfelt. 319.
Flynn v. Campbell, 242.

V. Canton Co., 99, 919, 920, 928.

V. Eastern Ry. Co., SOU.

V. Hatton, 985.
Foakes v. Beer, 311, 3l.j.
Foetman v. Rottier, 611.
Fogarty v. Finley, 134.

V. Junction City Pressed- Brick Co.,
749, 769.
Fogel V. Schmalz, 220, 222.
Fogg V. Boston & L. R. Corp., 169,
258, 2(^4, 395.

V. Griffin, 169.

V. Nevada, C. O. Ry. Co., 745, 794.
Foley V. Electric Light Co., 1016.

V. New York Cent. & H. R. R.
Co., 985.

V. Pettee Mach. Works, 1002.
Folger V. Washburn, 622.
Follman v. City of Mankato, 982.
FoUott V. Edwards. 727.

Folsom V. Apple River Log Drivloi^

Co., 406. 808.
Folson V. Underbill, 390.
Fonda v. Van Home, 133.
Fonville v. McNease, 483.
Foot V. Card, 468.

V. New Haven & N. Co., 683.
Foote V. MerriU, 694.
Forbes v. Board of Health, 174.

V. Hagman. 622.

V. King, 490, 501.

V. Petty, 311.

V. Raihroad Co., 717.
Force v. Gregory, 912.

V. Warren, 540.
Ford V. ^eech, 311. 345.

V. Cheever, 416.

V. Chicago, R. L & P. Ry., 993,
998, 1018.

V. Fitchburg R. R., 1044.

V. Metropolitan R. Co., 786.

V. Monroe, 327.

V. Parker, 138.

V. School Dist., 187.

V. Taggart, 152, VA.

V. Town of Braiuirce, 180.
Forde V. Skinner, 393, 437.
Fordyce v. Briney, 1040.

V. Culver, 402.

V. Edwards, 1028.

V. Jackson, 1080, 1085.

V. McFlynn, 1074.

V. Nix, 903.

V. Russell, 796. 797.

V. Withers, 381.
Forehand v. Jones. 728.
Foreman v. Weil, 40, 273.
Formwalt v. Uylton, 426.
Forrest v. Hanson. 496.
Forrester v. Railroad Co., 1072.
Forsdick v. Collins, 727.
Forsyth v. City of Atlanta. 177.

V. Hooper, 230.
Ft. Dearborn Lodge v. Klein, 687.
Fortheringham v. Adams Exp. Co.,

420.
Ft. Smith Oil Co. v. Slover, 1025. 1045.
Fortune v. Trainor, 264, 277, 279.
Ft. Worth & D. C. Ry. Co. v. Dag-
gett, 1075.

V. Qreathouse, 306.

V. McNulty. 336.

CASES CITKD.

1145

[Vol. 1 comprises p^gea 1-G52, inclusive; yol. 2 the residue.]

Ft Worth 6l D. O. Ky. Co., y. Measles,
830.

V. Peters, 1041.
Ft Worth & N. O. Ry. Co. v. Smith,
253, 669.

V. Wallace, 955.
Ft Worth & B. G. Ky. Ck). y. I. B.

Bosenthal Millinery Co., 1077.
Forward y. Pittard, 1059, 1062.
Fosburg V. Phillips P^el Co., 996.
Posdick V. Sclmll, 207.
Fosliay y. Town of Gleu Hayen, 748,

766.
Foster y. Bank, 255, 258, 263, 900.

V. Boston, 774.

v. Charles, 563.

V. Gorton, 711.

y. Metz, 138,

y. Mining Co., 709.

y. Minnesota Cent Ry. Co., 1043.

y. Missouri Pac. R. Co., 998.

y. Perkins, 664.

y. Rheinhart, 139.

y. Rockwell, 48.

y. Scrlpps, 536.
Fothergill y. Loyegrove, 736.
Fouldes V. Willoughby, (562, 717, 720,

723, 735.
Foulger v. Newcomb, 50«i.
Fournet y. Steamship Co., 470.
Foward y. Adams, 507.
Fowle V. New Hayen & N. Co., 410.
Fowler, The Julia, 1041.
Fowler v. Baltimore & O. H. Co., 817.
*v. Chichester, 170. 217, 219, 220,

«>•>•»

V. Dowduey, 502.

y. Gilman, 737.

y. HoUins, 735, 736.

y. Holmes, 277.

y. Homer, 539, 543.

y. Jenkins, 56.

y. Lindsay, 85.

V. McCann, 590. 592.

y. Saks, 235.

y. Sergeant, 914. *

V. Smith, 315.
Fowles y. Bowen, 480, 530, 544.
Fox V. Broderick« 475.

V. Gaunt 427.

V. Harding, 667.

y. Jones, 917.

Fox y. Railway Co., 141, 391, 1028.

y. Steyens, 459.

y. Thibault, 134.
Foxworthy y. City of Hastings, 176.
Frace y. Railroad Co., 72.
Fralich y. Despar, 357.
France y. Gaudet, 384, 742.
France's Adm'r y. Louisyille & N. R.

Co.. 831.
Francis y. Cockrell, 280, 895.

V. Haywood, 690.

y. Kansas City. St. J. & O B. R.
Co., 1018, 1052.

y. Schoellkopf, 367, 769, 779, 808.

aU9.

y. W. U. TeL Co., 304, 307, 369.
Frandsco y. Aguirre, 132.

y. State, 634.

y. Troy & L. R. Co.. 1090.
Frandsen y. Chicago, R. I. & P. R. Co.,

1028, 1055.
Frank y. New Orleans & C. R. Co.,
779.

y. Tatum, 392, 721.
Frank and Willie, The, 943. 1041.
Franke y. City of St Louis, 224.
Frankhouser y. Cannon, 132, ::il.
Franklin y. Brown, 578.

V. Frey, 416.

V. McCorkle, 452, 457, 459.

y. Winona & St P. R. Co., 1052.
Franklin Conl Co. y. McMillan, 700.
Franklin's Adm'r, Appeal of, 221.
Fi-aser y. Freeman, 255, 333.

V. Red Rlyer Lumber Co., 1046.

y. Tupper, 946.
Fratinl y. Caslani, 406.
Fray y. Blackburn, 117, 119.
Frazer y. Berkeley, 445.

y. Kansas City, St J. & C. B. R.
Co., 1076.
Frazier y. Brown, 55, 56, 557, 758, 761.

y. Caruthers, 688.

V. McCloskey, 519, 547.

y. Nortinus, 677.

y. Turner, 418, 425.
Fredericks v. Ulinois Cent R. Co., 830.

V. Railroad Co., 265-267.
Frederlcksen y. Singer Manufg Co.,

434v 445.
Freeberg v. St. Paul Plow Works.
944, 1014.

1146

CASES CITED.

[Vol. 1 comprises pages 1-652, inclu^ve; vol. 2 the residue.]

Freed v. Cameron, 894.
Freedley v. French, 317.
Freeman y. Boland, 159, 163, 731.

V. Cornwall, 120.

V. Dempsey, 372.

V. Grant, 724.

V. Louisville & N. R. Co., 1067.

V. McDaniel, 593.

y. Kanklns, 664.

y. Sanderson, 483.

V. Scurlock, 735.

V. Venner, 368.
Freethy v. Freethy, 463.
Freke v. Calmady, 697.
Fremont, B. & M. V. R. Co. v. Pound-
er, 92a
French y. Bancroft, 419.

y. City of Boston, 185.

V. Connecticut River Lumber Co.,
806.

V. Cresswell, 260.

y. Deane, 405, 466.

V. Detroit Free I'ress, 482.

y. Glnsburif, 352.

V. Vinlng, 577, 586, 908.

V. Vix, 23G.

y. Ware, 439, 440.

V. Western N. Y. & P. R. Co., 921.

y. Wilkinson, 858.
Frenzel v. Miller, 565.
Freeh v. Cutter, 543, 544.
Fresno Milling Co. v. Fresno Canal &

Irrigation Co., 326.
Freudenstein y. Heine, 412.
Frick 'V. Lamed, 30.

V. Railway Co., 198.
Frick Co. v. Falk. 970.
Frielander y. Railway Co., 269.
Friend v. Hamill, 135.

V. Wood, 1063.
Friesenliahn v. Bushnell, 283.
Frith v. City of Dubuque, 412.
Fritts V. New York & N. E. R. Co..

s-js.
Fritz V. Railroad Co., 142.
FrlzzeU v. Duffer, 139.
Frobisher v. Fifth Ave. Transp. Co.,

964.
Frohreich v. Gammon, 372, 599.
Frorae v. Dennis, 717.
Fromm v. Ide, 898. 970.
Frost V. Angier, 571.

Frost V. Berkeley Phosphate Co., 771,
772.

V. Domestic Sewing Mach. Co.,
168.

y. Railroad Co., 830, 946.
Fruitport Tp. v. Muskegon Circuit

Judge, 664.
Fry v. Bennett, 511.

V. Branch Bank at Mobile, 687.

v. County of Albemarle, 183.

v. Estes, 625.

v. Leslie, 159, 456, 450, 460.

y. Railroad Co., 370.
Frye y. Derstler, 466.

V. Moor, 835.
Fryer v. Kinnersley, 544.
Fugate y. Millar, 622, 624, 625.
Fulkerson v. Murdock, 392.
Fulks V. St. Louis & S. F. Ry. Co., 942.
Fullam V. Rose, 220.

V. Stearns, 307, 675.
Fuller V. Baltimore & O. E. R. Ass'n,
313.

v. Bean, 669.

V. City of Jackson, 390.

v. Edings, 349.

V. Hodgdon, 593.

v. Jamestown St. Ry. Co.. 860.

V. Jewett, 1007.

V. Kemp, 315.

V. Madison Mut. Ins. Co., 318.

V. O'Neall, 337.

V. Wilson, 566.
Fullorton v. Fordyce, 1087, 1088,
Fulsome v. Concord. 406.
Fulton y. Hanna, 351.

V. Hood, 578, 590.

V. Lydecker, 728.
Fulton Bag & Cotton Mills y. Wilson,

302.
Fulton Co. St. R. Co. v. McConneU,

229.
Funk v. Amor, 618.

V. Evening Post Pub. Co., 366.
Furley v. Chicago, M. & St. P. Ry. Co.,

858.
Fiirlcmg V. Banta, 324.
Furman v. Van Sise, 452, 453.
Fiu-nas V. Friday, 565.
Furpin v. Remy, 604.
Furry v. O'Connor, 588.
Fuschs V. Schmidt, 99.
fFiisiU V. [Missouri Pac. R. Co.. 924.

CASES CITED.

1147

[Vol. 1 comprises pagen 1-^2, indusire; vol. 2 the residne.]

Q

Gaar v. Seldeu, 7)28.
Oabrlel v. Dresser, 314.
Gabrielson y. Waydell, 255, 1043.
Gadsden & A. U. Ry. Ck>. Y. Gausler,

192.
Gage y. Hampton, 687.

y. Lewis, -583, 584.

y. Smith, 701.

y. Tirrell, 1063.
Gapg V. Vetter, 840, 843.
(}ahan y. Western Union Tel. Co., 368.
Gaines y. Bard, 242.

y. Belding, 504.

y. Green Pond Iron Min. Co, 700.
Gainesville, H. & W. R. Ck). v. Hall,
141.

V. Lacy, 363.
Gains v. Engel, 337.
Gainsville Nat. Bank y. Bamberger,

588.
Gaither v. Advertiser Co., 501, 506.
Galbes y. Girard, 110.
Galbraith v. Fleming, 200, 203.
Gale V. Lisbon, 972.

v. Parrott, 449.
Galena & G. Union R. Co. v. Jacobs,
978.

v. Dill, 929.
Gallager y. Brunei, 584.
Gallagher v. Bowie, 470.

v. Dodge, 56.

v. Humphery, 35.

V. Kemmerer, 212, 345.

V. Piper, 1046.

V. Stoddard, 612.
(Talliard v. Laxton, 427.
Galllgan v. Kelly, 53vS.
Galloway v. Bird, 352.

V. Chicago, M. & St. P. Ry. Co.,
803.

y. Chicago, R. L & P. Ry. Co., 811,
1091.
Galpin v. Railroad Co., 142, 769.
Galveston, H. & S. A. Ry. Co. y.
Arispe, 998.

y. Balkam, 930.

y. Ball, 307.

y. Cook, 332.

V. Croskoll, 211, 946.

V. Daniels, 994.

Galveston, H. & S. A. Ry. Co. y.
Dromgoole, 363.

v. Grormley, 1010.

y. McMonigal, 200, lOSa

y. Rheiner, 669, 845.

y. Roemer, 30.

v. Schmidt, 106&

y. Short, 1071.

y. Silegman, 307, 362.

y. Snead, 1081.

y. Tait, 763.

Y. Templeton, 389, 1007.

y. Thomsberry, 979, 1087.

y. Walter, 926.

v. Wesch, 402.

v. Williams, 362.
Galveston Oil Co. v. Morton, 897.
Galvin v. Bacon, 682.

y. Gualala Mill Co., 843, 940, 941.

y. Mac Mining & Milling Co., 27.

y. Mayor, 764.

V. Old Colony R. Co., 963, 998.

y. Parker, 721, 856.
Galwny v. Metropolitan EL Ry. Co.,

411.
Gambert v. Hart, 916.
Gammill v. Johnson, 596.
Gandy y. Jubber, 226, 796.
Gannon v. Hargadon, 760.

v. Hoiisatonlc R. R., 1084. ia35.
Ganvreau v. Superior Pub. Co., 505.
Garabaldl v. Wright, 708.
(Jardln v. St Paul & D. R. Co., 1080.
Gardiner v. Thlbodeau, 069.
Gardmal v. McWllliams, 527.
Gardner v. Brown, 352.

y. Doring, 701.

y. Detroit St. Ry. Co., 1085.

y. Grace, 161.

y. Heartt, 814.

v. Kellogg, 456.

y. Michigan Cent R. Co., 822, 953,
1047, 1049, 1052.

y. Self, 524.

y. Slade, 544.

y. Smith, 237.

y. Stroever, 745, 787. 807.

V. Trenary, 59JK

v. Ward, 135.

V. Waycross Alr-Llne R. Co., 1081.
Garfield v. Douglass, 118.
Gargrave v. Smith, 680.

1148

CA8£8 CITRI).

[Vol. 1 comprises pages 1-652, inclasiye; yol. 2 the ri'sidue.]

Oaring y. Fraser, 127, 638, 639.
Garison v. Burden, 465.
Garland, Ex parte, 1G6.

V. Carlisle, 735.

T. Towne, 765, 8^8.
Garlinghouse y. Jacobs, 128, 129.
Gamett y. Ferrand, 119.
Gamier y. Bernard, 622.

y. Porter, 843.
Garr y. Selden, 528.
Garrahy y. Kansas City, St J. & O.

B. R. Co., 1039.
Garret y. Taylor, 645,
Garretson y. Becker, 371, 455.
Garrett y. Chicago &, N. W. R. Co.,
943.

y. Mannelhmer, 615, 620.

y. Western Union Tel. Co., 900,
971.
Garretz y. Duenckel, 260.
Garrison y. Barnes, 856.

y. GraybiU, 202.
Gartelser y. Galyeston, H. & S. A. Ry.

Co., 982.
Gaslight & Coke Co. y. Vestiy of St

Mary Abbott's, 140, 840, 844.
Gassctt y. Gilbert, 513.
Gates y. Blincoe, 800, 801.

y. Burlington, C. R. & N. R. Co.,
192.

y. Chicago, B. & Q. R. Co., 1069.

y. Fleischer, 913.

y. Lounsbury, 442.

y. Meredith, 157, 166, 432.

y. Miles, 156.

y. Neal, 135.

V. Preston, 323.

y. Railroad Co., 77, 963, 1010.

V. Rifle Boom Co., 716.

y. Young, 127.
Gateward's Case, 689.
Gathercole y. Miall, 382.
Gatliffe y. Bourne, 1062, 1067.
Gaunce y. Backhouse. 640.
Gaunt y. Fynney, 781.

y. Taylor, 164,
Gautret y. Bgerton, 574, 891, 892,

1082.
Gayelt v. Manchester & L. R. Co.,

957.
Gay y. Essex Blectilc St. R. Co., 830.

y. State, 783.

1 Gay y. Winter, 333.
Gaylard y. Morris, 662.
G. B. & L. Ry. Co. y. Eagles. 840.
Geddes v. Pennington, 594.
Gedney y. Kingsley, 913.
Gee y. Railroad Co., 832, 971.
Geer y. Darrow, 230.
Geiselman y. Scott, 970.
Geisler y. Brown, 504.
Geismer y. Lake Shore & M. S. Ry.

Co.. 1064.
Gellet V. Roberts, 726.
Gelzenleuehter y. Nlemeyer, 425, 60G.
Genesee Co. Say. Bank y. Michigan

Barge Co., 588.
Genevey y. Edwards, 623.
Genner v. Sparks, 420, 421.
Gent y. Lynch, 553.
Gentleman y. Soule. 681.
Gentry y. Kelley, 741.

V. Railroad Co., 362, 391.
Genung v. New York & N. B. R. Co..

846.
George y. Flsk, 70, 692.

y. Gobey, 253. 2G0.

y. Goddard, 534.

y. Haverhill, 381.

y. St Louis, I. M. & S. Ry. Co.,
1085.

V. Skivington, 586, 905, 907, 908.

y. Tait, 317.

y. Wabash Western R. Co., 412.
Geo. F. Dittman Boot & Shoe Co. v.

Keokuk & N. W. R. Co., 1078.
Georgetown B. & L. Ry. Co. y.

Doyle, 143, 144.
G(K>rge & Richard, The, 78, 334.
Georgia v. Jessup, 111.
Georgia Midland & G. R. Co. y.

Eyans, 941.
Georgia Pac. R. Co. y. Dooley, 303.

V. Lee, 824.

V. Propst 1000.

y. Robinson, 1088.
Georgia R. Co. y. Anderson. 1085.

V. lyey, 1055.
Georgia Railroad & Banking Co. y.
Daniel, 871.

y. Middlebrooks, 931.

y. Oaks, 330.

V. Parks, 931.

y. Rhodes, 967.

CASES CITED.

1149

[Vol. 1 comprises pages 1-662, incluslTe; toI. 2 the residue.]

Georgia Railroad & Banking Oq. v.

Wood, 263.
Gerard v. Dickenson. 552. 553.

V. Lewis, 773.
Geraty v. Stern, 263.
Gerdes v. Foundry Co., 177. 389. 950.
Gerhard ▼. Bates. 376, 378.
Gerlach v. Edelmeyer, 1034.
German y. Clark, G92.
German Bank of Memphis y. United

States, 112.
Getchell y. Hill, 913.

V. Llndley, 013.
Gheen y. Johnson, 285.
Gibbons y. Pepper. 66.

y. United States. 110. 112.

y. Wilkes-Barre &. S. St. Ry. Co.,
861, 968.
Glbbs y. Ames, 605.

y. Chase, 661, 717, 721.

y. Hannibal, 335.

y. Randlett, 418.

y. Williams, 761, 763.
Glblin y. McMullen. 818.

y. National. Steamship Co., 1074.
Gibney y. State, 960.
Giboney y. German Ins. Co.. 314.
Gibons y. Farwell, 1066.
(Gibson y. Chaters, 606.

y. Cincinnati Enquirer, 519.

y. Culyer, 1069.

y. Donk, 780.

y. Fischer, 808.

y. Inpiis, 186.

y. Leonard. 891, 921, 930.

y. Railroad Co., 312, 334, 686.
870, 957, 905, 1006, 1017, 1032.

y. St. Louis, A. & M. Ass'n, 686.
Gibson Consol. Mining & Milling Co.

V. Shaip, 415, 1018.
Giddens y. Boiling, 688.
Gieso V. Schultz, 4."ii).
Gifford y. Hulett, 777.

y. Wlijgins, 123, 42G.
Gilbert v. Burtenshaw, 401.

y. Crystal Fountain Lodge, 170.

y. Flint & P. M. Ry., 828.

y. Kennedy, 693.

V. NiiKle, 895.

y. IVck, 721. 731.

y. Penplp, 527. 528.

V. Savannah, G. & N. A. Ry. Co.,
7<«.

Gilbert v. Stone, 205.

y. West End St Ry. Co., 1083,
1093.

y. Williams, 917.
Gllbertson y. Fuller, 623, 627.
Gilchrist y. McKee. 549.

y. Van Dyke, 691. 692.
Gilding y. Eyre. 606.
Gile y. Steyens. 367.
Gilos V. Faunteroy, 1077.

y. Simonds, 683, 684.

V. State. 479.

V. Walker, 749.
(rilford y. Babies' HospiUil, 767.
Gill y. Homrlghausen, 1017.

y. Weston, 716.
Gillard y. Brlttan. 382.
Gillonwater y. Madison & L R. Co..

1030.
Gillespie y. Beecher, 442.

V. City of Lincoln, 174.

y. Palmer, 135.
Gillet y. Mason, 659.
Gillian y. Railway Co., 277.
Gilllngham y. Ohio R. R. Co.. 423.
Glllis y. Railroad Co.. 897, 1082.

y. Western Union Tel. Co., 307.
Gillison y. City of Charleston, 764.
Gillon y. Boddington, 335.
Gilman y. Eastern R. R. Co.. 1008.

y. Lowell, 483.

y. Noyes, 63, 374.
Gilmore y. Cape Fear & Y. V. R. Co.,
885.

y. Federal St Sl P. V. Pass. Ry.
Co.. 861. 880.

y. Newton, 726.

y. Oxford Iron & Nail Co., 1041.

y. Philadelphia & R. R. Co., 1087.

y. Ross, 926.
Gilpin V. Fowler, 540.
Gilson y. Collins, 289.

V. Fisk, 708.

y. Spear, 162, 164.

y. Wood, 669, 712.
Ginna y. Railroad Co., 73.
Giovanni y. City of Philadelphia,

179.
Girard y. Blssell, 914.

y. City of Kalamazoo, 946.

y. Moore, 397, 628.

y. St. Louis Car- Wheel Co., 317,
318, 320.

1150

CASES CITED.

[Vol. 1 coDipriBea pnges 1-652, inclusiYe; vol. 2 the reaidae.]

Gimult V. A. P. Hotaling Ck>., 278.

Givens v. City of Paris, 174.

Gizler V. WItzel, 195.

Gladfelter v. Wallter. 82.

Gladman v. Johnson, 857.

Gladwell y. Stej-gall, 1K>5, 910, 911,

914.
GUiessner y. Anheuser-Busch Brewing

Ass'n, 787.
Ghiscoclt y. Central Pac. R. Co., 863.
Glasgow y. Owen, 622.
Glasier y. Town of Hebron, 129.
Glaspell y. Northern Pac. R. Co., 002.
Glaspie y. Keator, 324, 569, 579.
Glass y. Bennett, 467.

V. Fritz, 754.
Glasscock y. Bridges, 622.
Glassey y. Hestonyille Ry. Co., 985.
Glatz y. Thein, 511.
Glavin y. Hospital, 187.
Glazebrook y. West Kiul St. R. Co.,

861.
Gieason y. Gary, 779.
Gleeson y. Virginia Midkmd R. Co.,

70, 235, 939, 1U85, 108(;.
Glendon Iron Co. y. Uhler, 773.
Glenn v. Kays, 679.
(ilenyille y. Railroad Co., 391.
(tlickauf y. Maurer, 227.
(iloiicester Grammar School Case, 90.
(Jlover y. Railroad Co., 380.

y. Townshend, 579.
Gloyinsky y. Cunard S. S. Co.. 362.
Glyn y. East & W. India Dock Co.,

705.
Glynn y. Houston, 242.
Goddard v. Harps well, 181.

y. Railroad Co., 45, 170, 172, 262,
288, 309, 39(?.
Godefroy y. Daltou. 915.

y. Jay, 915.
Godfrey y. City of Alton, 704.

V. Souiat. 022, 028.
Godley v. Hajj^erty, 226.
Godsell y. Taylor, 945.
Godshalk y. Metzgar, 533.
Goetcheus y. Matthewson, 135.
Goetz V. Borough of Butler, 181.
GofT y. Kitts, 659.

y. Oberteuffer, 685.

y. Railroad Co., 254, 1279, 1020.
Goflin y. Doum»lly, 527.

Going y. Dinwiddle, 418.
Gold y. Bissel, 421, 425.
Goldberg v. Dobberton, 479.
Golden y. Newbrand, 243, 277.
Golden Gate Mill & Mln. Co. y. Josh-
ua Hendy Mach. Works, 669.
Golderman y. Steams, 509.
Goldey y. Raih-oad Co., 301.
Golding y. Hall, 342.
Goldsborough y. Darst, 216.
Golds mid v. Tumbridge Imp. Com'rs,

804.
Goldsmith's Adm'r y. Joy, 445, 446.
Goldstein y. Foss, 541.
Goll y. Manhattan Ry. Co., 837.
Gomez y. Joyce, 504.
Gonsolr y. Minneapolis & St. L. Ry.

Co., 1040.
Gonzales y. City of Galyeston, 78.

V. Cobllner, 608.

y. New York & H. R. Co., 1086.
Gooch y. Association, 188.
Good y. Altoona City, 7.')8.

y. Chicago, R. I. & P. Ry, Co.,
1032.

y. CJood. 464.

y. Mylin, 808.

y. Towns, 334.
Goodale y. Tuttle, 763.
Goodall y. Crofton, 804.
(roodcnow y. Snyder, 297.
Goodes V. Boston & A. R. Co., 998.
Goodfellow y. Boston, H. & E. U.
(!o., 1036.

y. City of New York, 177.
Gooding y. Underwood, 292.
(Joodlander Mill C^. y. Standard Oil

Co., 61, 73, 909, 965.
Goodman y. Kennell, 252.

V. Oregon R. & Nay. Co., 1064.
Goodno y. Oshkosh, 391, 4(M».
Goodnow y. Walpole & G. Emery

Mills, 1010.
Goodrich y. Dayis, 485.
Goodrum y. State, 436.
Gooilsell y. Taylor, 902, 1023.
Goodspeed y. East Haddam Bank,

109.
Goodwin y. Home, 584.

y. Potter, 352.

y. Railroad Co., 871.

y. Trust Co., 5(;9.

CASKS CITED.

1151

[Vol. 1 comprises pages 1-652, inclusive: vol. 2 the residue.]

Goodwyn v. Chevelej, 077, 678.
Gonlen v. Slefert, 326.
Gordon v. Bruner, 27.

V. Buchanan, 1002.

V. Butler, 578.

V. Gummings, 894.

V. Farrar. 118.

V. Grand Rapids & I. R. Co., 846.

V. Harper, 710. 711, 713.

V. Hutchinson, 1057.

V. Parmelee, 580, 599.

V. Rolt, 247, 252.

V. Spencer, 199, 522.

V. Stockdale, 717.
Gordy v. Railroad Co., 1001.
Gorham v. Gross, 233, 234, 475, 834,
840.

V. Railway Co., 381.
Gorman v. McArdle, 967.
Gorniely v. Gymnastic Ass*n of South

Side. 581.
Gormley v. Railway Co., 201.

V. Vulcan Iron Works, 1046.
Gorris v. Scott, 99.
Gorton v. Erie R. Co.. 883, 9^0.
Gotobed v. Wool, 351.
Gott V. Pietseler, 5.m

V. Pulsifer, 518, 535.
Gough V. Dorsey. 119.

V. Goldsmith, 48().
Gould V. Barratt, 628.

V. Blodgett 727.

V. Hammond. 118, 120.

V. McKenna. 412, 749.

V. Northern Pac. R. Co.. 846.

V. Slater Woolen Co., 908.

V. Wise. 40. 273.
Goulding V. Horbury, 205.
Gourd ier v. Cormack, 233.
(^ovaski V. Downey, 614, 623.
(4ove V. Blethen, 507.

V. FarnitM's' Ins. Co., S21, 823.

V. Watson. 730.
Governor of British Cast Plate Manu-
facturers V. Meredith, 142.
Govett V. Radnidge, 69(3.
Govin V. De Miranda. ;525.
Gowen v. Harley, 20<;.
Grable v. Margrave. 459, 460.
Grace V. Dempsey. 430.

V. McArthur, 545.

V. Mitchell. 425.

Grace v. Teague, 111. 443.

Graeff v. Philadelphia & R. R. Co.,

1089, 1092.
Graetz v. McKenzle. 849. 968.
Graf V. Railway Co., 883.
Graft V. Baltimore & O. R. Ca. 314.
Graham v. Boston & A. R. Co., 99:^.

V. City of Albert Lea, 176.

V. Gantier. 913.

V. Hollinger. 563. 566.

V. McReynolds, 456.

V. Meyer. 291.

V. Peat. 669. 670.

V. Smith, 458.
Grainger v. Hill, 421, 632.
Grainnis v. Branden. 913.
Gramm v. Boener, 870. 914.
Grand Island Banking Co. v. First

Nat. Bank. 655.
Grand Junction Canal Co. v. Shugar,
759.

Grandona v. Ix)vdal. 800.
Grand Rapids v. Wyman. 176.
Grand Rapids B. Co. v. Jarvis, 808.
Grand Rapids & I. R. Co. v. Cox, 9(*7.

V. Heisel. 410.

v. Huntley, 820, 944.
Grand Trunk Ry. v. Cummings. 10;^5,
1052.

v. Ives. 819. 926, 927, 953, 974.

V. Latham. 283.
Granger v. Pulaski Co., 183.
Grannis v. Chicago. St. P. & K. C.

Ry. Co.. 990.
Grant v. City of Brie, :55, 175.

V. City of Fitchburg, 989.

V. Moseley, 12, 50.

V. Moser, 428.

V. Schmidt 794.

V. Secretary, 529.
Gratiot v. Missouri Pac. R. Co., 929.
Gravel v. Clough, 737.
(Iraver v. Sholl, 82.
(iraves v. Dawson, 611.

V. Railroad Co., 305.

V. Shattuck, 801.

V. Smith. 709.

V. Thomas, 886.
Graw V. Pattersoui 715.
Gray v. Ayers, 799.

V. Ayres, 195, 802.

V. Baker, 505, 509.

1152

<;ase8 cited.

[Vol. 1 comprises pages 1-662, inclnsWe; vol. 2 the residue.]

Gray v. Boston Gaslight Co., 216, 84().

y. Bullard, 390.

V. Durland. 454.

v. EUzroth. 549.

y. Elzroth, 54&

y. Hnrris, 834.

y. McWUllama. 762.

y. Manufacturing Co., 583.

y. Merriam, 901.

y. Pentland, 516, 630.

y. Philadelphia & R. R. Co., 1036.

y. Pullen, 98, 235.

y. Robinson, 352.

y. State, 351.
Great Falls Co. y.Worater, 6(58.
Greathouse y. Summerfield, 420, 421.
Greatrex y. Hayward, 759, 761.
Great Western Ry. Co. y. Blake, 1072.
Great Western Ry, Co. y. Bums,
1060.

y. Hawarth, 965.

y. Hawkins, 1068.
Greeley y. Federal St. & P. V. Pass.
Ry., 861.

y. Maine Cent. R. Co., 760.
Green y. Barney, 362.

y. Bartrom, 428.

y. Button, 553, 554, 556, 635.

y. City & Suburban Ry. Co., 185.

y. Cochran. 609.

y. Dunn, 728.

y. Elgie. 423.

y. Goddard, 657, 660.

V. Hammock, 688.

y. Hudson Rlyer R. Co., 327, 32S.

y. Lake, 803.

y. London General Omnibus Co.,
1(58.

y. Loulsyille, N. O. & T. R. Co.,
966.

y. Omnibus Co., 169, 170.

y. Palmer. 707.

y. Russell, 728.

y. Sperry, 159, 163.

y. Thompson, 331.

V. Woayer, 82.
Green Bay & M. Canal Co. y. Kau-

kauna Water-Power Co., 756.
Greene y. Cole. 697.

V. Inhabitants of Milford, 784.

y. Linton. 831.

Greene y. Minneapolis & St L. Ry.

Co., 1020, 1026, 1027.
Greenebaum y. Taylor, 362, 707, 741.
Greening y. Wilkinson, 739.
Greenland y. Chaplin, 373, 376.
Groenleaf y. Egan, 282, 283.

y. Francis, 557, 758.
Greenslade y. Halliday, 801.
Greenway y. Conroy. 192, 872. 1022,
1039, 1043.

V. Fisher. 735.
Greenwood v. Cobbey, 530.

y. Coflfey, 508.

y. Greenwood. 452.

y. Town of Westport, 14. 178, 184.
Greer y. Tripp, 733.
Rregg V. Illinois Cent, R. Co.. 1070.

V. Wyman, 192.
Gregory y. Brooks, 118, 120.

V. Bush, 761.

y. Duke of Brunswick, 639, 645.

y. Fichtner, 338, .728.

y. Gregory, 607.

y. Hill, 442.

y. Lay ton, 843.

V. Piper, 247, 661, 663.

y. Thomas, 621.

y. Woodworth, 943.
Gregory's Adm'r y. Ohio Rlyer R. Co.,

260.
Gresluim y. Island City Say. Bank,

741.
Gribble y. Pioneer Press Co., 508, 520.
(Glider v. Talley. 124.
(iridley y. City of Bloomington, 224.
(iridner, In re, 607.
(iriebel v. Rochester Print Co., 475.
(irrier y. Sampson, 879.
Griflfe y. McClung, 342.
Griffin y. Auburn, 867.

y. Boston & A. R. Co., 936.

V. Chubb. 619.

y. Coleman, 427.

y. Diller. .j99.

y. Farrier, 571, 597.

V. Glen Mannf'g Co., 1004.

y. Mayor, 175.

y. Ohio & M. Ry. Co., 1003.

y. Oyerman Wheel Co., J>43.

V. ShreveiKjrt & A. R. Co., 145.
Grifflng V. Difer, 639.

CASES CITED.

1153

[Vol. 1 comprises poges 1-652, inclusiye; toI. 2 the residue.]

Grifflng T. DiUer, 245, 581, 591, 502.
Griffith V. Clift, 8S0.

V. Frazier, 123.

V. McCullum, 799, 802.
Griffiths V. Earl of Dudley, 314, 1029.

V. New Jereey & N. Y. R. Co.,
1041.

V. Teetgen, 451-4.53.

y. Wolfram. 281, 1037.
Grigg V. Day, 739.
Griggs V. Fleckenstein, 70, 809, 950.
Grigsby y. Chappcll, 185, 1058.

V. Clear Lake Waterworks Co.,
801.
Grill V. General Iron S. O. Co., 817,

819.
Grim y. Robinson. 074, 682.
Grimes v. Eddy, 858.

y. Minneapolis L. & M. Ry. Co.,
1070.
Grimshaw v. Belcher, 686.
Grimsley v. Hankins, ,334, 851, 1041.
Grinell v. Wells, 449, 453, 459.
Grinnell v. Western Union Tel. Co.,
302.

y. Wisconsin Cent. Co., 10(K).
Grlsby v. Clear Lake Water Co., 797,

801.
Griswold V. Bay City. 689.

V. Boley, 133.

V. Gebbie, 570.

V. Haven, 44, 269.

V. Railway Co., 300, 301.

V. Sundback, 352.
Groetcheus v. Mathewson, 135.
Groff V. Ankenbrandt, 801.

V. Hohrer, 560.
Grogan v. Adams Exp. Co., 301, 303.

V. Broadway Foundry Co., 797.
Gronendyke v. Cramer. (kS2.
Groncr y. Delawai-e, etc., Canal Co..

883.
Gross V. Miller. 194.

V. Pennsylvania P. & B. R. Co.,
342.
Grossenbach y. City of MiIwauk<H\

178.
Grosso V. Delaware, L. & W. R. Co.,

328.
Grostick v. Railroad Co., 8S4.
Grote V. Chester & II. R. Co., 1089.
Grotton v. Glidden, 203.

LAW OF TORTS— 73

Grouch V. Hazlehurst Lumber Co., 45.
Grout V. Cottrell. 625.
Grove v. Brandenburg, 127.

V. Ft. Waj-ne, 765.

V. Nevll, 164.

V. Van Duyn, 123.
Grubbs' Appeal, 700.
Grube v. City of St. Paul, 174.
Grudger v. Western N. C. R. C^., 144.
Grumon v. Raymond. 123, 124, 425,

42(J.
Grunberg v. (irant, 132.
Grund v. Van Vleck, 210, 694.
Gruner v. Westin. 672.
Grunwald v. Freese, 311.
Grymes v. Boweren, 702.

V. Shack, 659.
Guelich v. National State Bank, 285.
Guenther v. Railroad Co., 198, 871.
Guernsey v. Cook, 287.
Guest v. Reynolds, 89. 749.

V. Warren, 324, 630.
Guffen v. Reynolds, 222.
Guggenheim*s Case, 963.
Guiding Star, The, KKHJ.
Guilford V. Kendall, 656.
Guillaume v. Hamburg & A. Packet

Co., 719.
Guille V. Swan, 50, 71, 74, <!(n.
Guinney v. Hand, 278, 279.
Guimey v. St. Paul, M. & M. Ry. Co..

1007

Guldager v. Rockwell, 316.
Gulf, C. & S. F. R. Co. V. Calhoun.
3(53.

V.

Campboll, 191.

V.

Cole, lOSO.

V.

Cuaenborry. mi, 671-673, 847.

V.

Danshank. 972.

V.

Dohl, 1016.

V.

Donahoo, 763.

V,

Dorsey, 995.

V.

Dunlap, 363.

V.

Dunman, 363.

V.

Elliott 307.

V.

Ellis, 9,53.

V.

Evansich. 94&

V.

Gann, 1075.

V.

Gilbert, 363.

V.

Haskell, 936, 947.

V.

Henry, 1079.

V.

Higby, 1084.

1154

CASES CITED.

[Vol. 1 comprises pa^es 1-C52, inclusive; vol. 2 the residue.]

Gulf, C. & S. F. R. Co. V. Hume, 307,
1068, 1069.

V. Humphries, 710.

V. Jackson, 997, 1017.

V. James, 622, 629.

V. JohDSon, 198, 070, 712, 843.

V. Jones, 391.

V. KlUebrew, 108!>.

V. Klrkbride, 45, 205.

y. Kizziah, 957.

V. liooney, 1079.

V. M'Aulay, 1068.

V. McFadden, 170.

V. McNeill, 1012.

V. Matthews, 362.

V. Meson, 1080.

V. Montgomery, 870.

V. Pendery, 860.

V. Redeker, 462.

V. Reed, 45, 395, 782.

V. Rossing, 362.

V. Roundtree, 10J)0.

V. Rowland. 928.

V. Ryan, 1089.

V. Shields, 1092.

V. Simmons, 1076.

V. Simonton, 921.

V. Smith, 948.

V. Steele, 747.

V. Stricklin, 1084.

V. Tennant, 30S.

V. Thompson, ,'i08.

V. Trott. 369.

V. Vaughn, 308.

T. Vieno, 462.

V. Welch, 882.

y. Wilbanks, 308.

y. Wilm, 1076.

y. Wilson, 244.

V. Winton, 313.

y. Wright, 1067.
Gulledge y. White, 658.
Gumz y. Chicago, St. P. & M. Ry. Co.,

967.
(Junderson y. Northwestern Elevator
Co., 988.

y. Richardson, 191
Gunn y. Harris, 670.

y. Ohio River R. Co., 987, 989.
Gunsolus y. Ix>rmer, 665, 666, 687.
Gunter v. Astor, 645.

Y. GraniteviUe Manufg Co., 1039.

Gunther v. Ullrich, 270.
Gunton y. Nurse, 728.
Gurley y. Armstead, 736.

y. City of New Orleans, 916.

y. Missouri Pac. Ry. Co., 389, 390,
860, 881, 892.

V. People, 317.
Gurnsey y. Lovell, 428.
Guth v. Lubach, 504.
Guthrie y. Jones, 717, 723.
(^^utsole y. Mathers, 477, 551.
Guy v. Fisher & Burnett Lumber Co.,

324.
Gwaltney y. Land Co., 361.
Gwlnnell v. Earner, 225, 226, 229.
Gwynn v. Duffleld, 907.

y. South Eastern Ry. Co., 1G9.

Haag v. Board of County Com'rs, 177,

180.
Haas y. Choussard, 82.

v. Kansas City, Ft S. & G, R..Co.,

1064.
V. Missionary Soc. of the Most
Holy Redeemer, 126, 187. ISS.
y. Philadelphia & S. M. S. S. Co..
1036.
Hackett y. B. C. & M. R. R., 1068.
V. Hackett, 13.

v. Providence Tel. Pub. Co.. 504.
Haddow y. Roxburgh, 28L
lladen y. Clarke, 471, 887.
v. Raili-oad Co., 966.
y. Sioux City & P. R. Co., 198, 361.
Hadley v. Baxendale, 372.
y. Cross, 847.
V. I ley wood, 465, 466.
y. Taylor, 766.
Iladon v. Brown. 802.
Hiielil V. Waba.sh Co.. 279.
Hat»nni v. Bleisch, 583.
Ilaesley v. Winona & St P. R. Co.,

830.
Hagan v. Providence & W. R. Co.,

395.
Hagebush y. Ragland, 221.
Hagee y. Grossman, 592.
Hagen y. Chicago, D. & C. G. T. J.
Ry. Co., 846, 955.

GASSB CITED.

1155

[Vol. 1 comprises pages 1-^2; indusiYe; vol. 2 the residue.]

Hager y. Danforth, 443.

V. Southern Pac. R. Co., 928, 949.
Haggart t. Stehlln, 785.
Haggerty v. Central R. Co., 334.

V. Thomson, 801.

V. Wilber, 675.
Hague V. Wheeler, 186.
Hahl V. Wabash R. Co., 263.
Hahn v. Cooper, 453.

V. Schmidt, 613. 623.
Hahnke v. Frederich, 857.
Haight V. Badgeley, 449.

V. Cornell, 534.

V. Hayt, 570.
Hailes y. Marks, 428.
Halle's Curator y. Texas & P. Ry. Co.,

377. 380.
Haines y. Campbell, 512.

y. Chicago, St P. M. & O. Ry. Co.,
1077.

V. Schultz, 396.
Halre y. Miller, 337.

y. Reese, 914.

y. Wilson, 475.
Hairston y. State, 435.
Haldeman v. Bruekhardt, 758.
Hale y. Clark, 676, 680.

y. Continental Life Ins. Co., 583.

y. Lawrence, 149.

y. Missouri Pac. R. Co., 1075.

y. Philbrick, 596.
Haley v. Case, 1023.

y. Chicago North Western Ry. Co.,
333.

y. .Tump Riyer Lumber Co., 228.

y. Lumber Co., 1020.
Hall, In re, 175.

y. Booth, 427.

y. Chicago, B. & N. R. Co., 402,
818, 820, 1023.

y. Corcoran, 163, 730.

y. Fearnley, 66.

y. Hollander, 461.

y. Incorporated Town of Manson,
176, 472, 963.

y. Johnson, 594.

y. Kintz. 353.

V. Mayor of Bristol, 79.

y. Memphis & C. R. Co., 1081.

y. Ripley, 925.

y. Rogers, 425.

y. Smith, 126, 128, 13a

Hall y. Suydam, 621.

V. Thayer, 119.

Y. Thompson, 598.
Hallam y. Post Pub. Co., 396, 513, 537,

547, 549.
Halleck y. Mixer, 27.
Halley, The, 102.

y. Gregg, 482. 491, 548.
Halllday y. Holgate, 725.
Halligan y. Chicago & C. Ry. Co., 666.
Hallock y. Kinney, 456.
Halsell y. Musgrayes, 269.
Halsey y. Brotherhood, 552, 553.

V. Rapid Transit St Ry. Co., 689.

V. Stillman, 504. 519.

V. Woodruff, 214.
Halsted's Ex'rs y. Colyin, 269.
Haluptzok y. Great Northern Ry. Co.,

45, 243.
Ham y. Canal Co., 896.

y. City of New York, 181.

y. Newburgh, D. & C. R. Co., 928.
Hambleton v. Veere. 85, 411.
Hambly v. Trott, 41. 329.
Hamer y. Hathaway, 739.
Hamilburgh y. Shepard, 610, 612.
Hamilton v. Bno, 497, 530, 536. 537.

y. Fond du Lac. 137.

y. Home Fire Ins. Co., 295.

y. Jones, 330, 331.

V. Lomax, 159, 204, 453. 454.

y. Plainwell Water-Power Co., 18.

y. Railroad Co., 140, 172, 790.

y. Rich Hill Coal Min. Co., 1014.

y. Ward. 81.

y. Whitridge, 777.

y. The William Branfort, 403.
Hamilton Co. Com*rs y. Mighels, 183,

188.
Hamlin y. Abell, 5(54, 601.

V. Great Northern Ry. Co., 1068,
1088.

y. Mack, 676.
Hamm y. Drew, 738.
Hammack y. White, 855, 880, 911,

935.
Hammatt y. Emerson, 565.
Hammersmith City Ry. Co. y. Brand.

141.
Hammon y. Fisher, 663.
Hammond y. Hightower, 440, 674.

y. Hopkins, 598.

1156

CASES CITED.

[Vol. 1 comprises pages l-<i52, inclusive; vol. 2 the residue.]

Hammond v. Melton, 854.

V. Northeastern Ry. CJo., 1080.
Hammond Co. v. Johnson, d95.
Hampton v. Brown, 605.
Hanaw v. Jackson Patriot Co., 508.
Hance v. Pacific Exp. Co., 1074.

V. Tittabawassee Boom Co., 714.
Hanchett v. Ives, 132, 670.
Hancke v. Hooper, 870, 913.
Hancock v. Baker, 675.
Hand v. Baynes, 1068.
Handlam v. McManus, 753.
Handy v. Foley, 222, 731.
Y. Johnson, 431, 433.
V. Waldron, 571, 579.
Hanewacker v. Ferman, 392.
Haney v. Pittsburgh, A. & M. Trac-
tion Co., 801.
V. Railway Co., 967, 1039.
Haney Manuf'g Co. t. Perkins, 292,

494, 497.
Hankins v. New York, L. E. & W. R.
Co., 1038, 1044.
V. Watkins. 821. 852, 045, 949.
Ilanley t. 16 Horses and 13 Head of

Cattle, 4.
Hanlon v. Ingram, 151, 843.

V. South Boston H. II. Co., 925.
V. Union Pac. R. Co., 336, ()64,
671.
Hanly v. Watterson. 353, 357. 691.
Hanmer v. Wilsey, 669.
Hanna v. Flint, 719.

V. Granger, 1040, 1041.
V. Jeflfersonville Ry., .'i35.
Hannah v. Connecticut River R. Co.,

1019.
Hannam v. IMookett, 350, 676, 854.
Hannem v. Pence, 747, 834, &H8, 840.
Hannibal Bridge Co. v. Schaubacher,

399.
Hannibal R. Co. v. Swift, 903, 1058.
Hannon v. Mookett, 676.
Hans y. Louisiana, 113.
Hanscom v. Drullard, 596, (500.
Hansen v. Chicago, M. & St. P. R.

Co., 831, 929.
Hansford v. Payne, 907.
Hansley v. Jamesville & W. R. Co.,

394.
Hanson t. Kdgerly, 593.

Hanson v. Globe Newspaper Co., 264,
474, 475, 485, 498.

V. Tarbox, 715.
Hardcastle v. South Yorkshire R. Co..

888, 891.
Hardenberg v. Raih-oad Co., 401, 402,

1080.
Harder v. Harder, 694.
Hardin v. Baptist Church, 149.
Harding v. Bod man, 127.

V. Brooks, 549.

V. City of Boston, 230.

V. I^rned, 155, 160.

V. Sandy, 677. 688.

V. Townshend. 399.

V. Weld, 155, 160.
Hardman v. Bellhouse, 314.

V. Wilcox, 190, 731.
Hardy v. City of Brooklyn, 179.

V. Munroe, 714.

V. Railroad Co., 242, 369.

V. Ryle, 36.

V. Williamson, 491.
Hare v. Mclntire, 281, 849, 921.
Ilargan v. Purdy, 508, 914.
Hargrave v. I^ Breton, 518.
Hargreaves v. Deacon. 831, 891.

V. Khnberly, 793.
Hargro v. Hodgdon, 785, 803.
Harker v. Blrkbeck, 669.

V. Dement, 713.
Harklns v. Car Co., 415.

V. Philadelphia & R. R. Co., S:\\.

V. Standard Sugar Refinery, ia*r».
Ilarlammert v. Moody's Adm*r, 30.
Harley v. Car Manufg Co., 945, f«r».

V. Louisville & N. R. Co., 1U41.
104S.

V. Merrill Brick Co., 212, 744, 749.
769, 795, 798, 802. 807.
Harman v. Tappenden, 86, 173.
Harmon v. Harmon, 681.

V. Railroad Co., 410, 412.

V. Tappenden, 135.
Harmony v. Bingham, 10<>9. •
Horned v. iMissourl Pac. R. Co.. 307.
Harnett v. Maitland. 697.
Harold, The, 238, 1034.
Harper v. City of Milwaukee, 170.

V. Godsell. 733.

V. Harper, 539.

CASES CITED.

1157

[Vol. 1 comprises pages 1-652^ inclusive; vol. 2 the residue.]

Harper v. Luffkin, 452.
V. Milwaukee, 177.
v. PlDkston, 486.
Harrell y. Kea, 340.
Harriman v. Railway Co., 205, 830.

V. Stowe, 287.
Harrington t. Commissioners, 120.

V. M'Sliane, 1058.

V. People, 441.

V. Tremblay, 713.

V. Ward, 130.
Harris v. Baker, 138.

V. Butler, 453.

V. Cameron, 375, 852, 907.

V. Carson, 129.

V. De Pinna, 89.

V. Fisher, 856.

V. Gillingham, 682, 683.

V. James, 212, 226, 245.

V. McMurray, 581.

V. McXamara, 228.

V. Nichols, 255.

V. Nickerson, 587.

V. Railroad Co., 200, 1065, 1073-
1075.

V. Rand, 1062.

V. Reynolds, 315.

V. Rosenberg, 211.

V. Ryding, 753.

V. Shebek, lOOTt.

V. Simon, 848, 849.

V. Smith, 665.

V. Tenney, 1:^2, 211.

V. Warre, 013.

V. Whltcomb, 135.
Harris' Adm'r v. Norfolk & W. R. Co.,

1019.
Harris' Case, 903.
Harrison v. Adauison, 693.

v. Berkeley, 80, 376, :J77.

v. Bush, 529, 5:m

v. Manship, 510.

v. Marshall, 200.

v. Price, 401.

V. Raih-oad Co., 18;;, 801, lo:U).

V. Rector, etc., of St. Mark's
Church, 781.

V. Redden, 371.

V. Southwark & V. Water Co., 778.

V. State, 914.
Harriss y. Sneeden, 553.

Harrold v. Winona & St P. R. Co.,

1088.
Harrop v. Herst, 82.

V. Hirst, 385, 387,-784.
narrower v. Ritson, 802.
Harscim v. Cohen, 164.
Hart, In re, 205.

V. Aldridge, 450.

v. Basset, 784.

v. Baxter, 527.

V. Board, 7^, 799.

V. City of Albany, 349, 802, 804.

V. Cole, 223, 894.

V. Evans, 809.

v. Flynn, 419.

V. Frame, 916.

v. Gumpach, 529.

V. Hudson River Bridge Co., 944,
948.

V. Mayor, 765.

v. Mental, 222.

V. Railroad Co., 243, 303, 305, 949,
1060.

V. Skinner, 730.

V. U. S., 110.

V. Wall, 501, 5.53.

V. West Side R. Co., 860.
Harter v. Wescott, 354.
Harttield v. Roper, 85. 984.
Hartford v. Brady, 678.

V. Talcott, 919.
Hartford ins. Co. v. Matthews, 503.
Hartford Iron Min. Co. v. Cambria

Min. Co., 738.
Hartley v. Herring, 386.

V. Moxham, 723.
Hartlieb v. Mcl^ne's Adm'r, 132.
Hartman v. Greenhow, 111.

v. Pittsburg Incline Plane Co.,
363.
Hartnall v. Ryde Com'rs, OS.
Hartshorn v. Chaddock, 754.

v. Day, 317.
Hartwell v. ('amman, 753.

V. Kelly, 677.

V. Northern Pac. Exp. Co., 305.
Harty v. Central R. Co., 921.
Hartz V. Railroad Co., 411.
Harvey v. Brydges, 088.

y. De Woody. 708, 801.

v. Dunlop, 53, 437.

1168

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Harrey v. Harvey, 675, 700.

T. liOrge, 325.

V. Mayne, 443.

V. New York. Cent. & H. R. R. Co.,
1000.

V. Ryan, 01.

V. Terre Haute, & I. R. Co.. 305.

V. Young, 578, 580.
Harwood v. Thompkins, 56.
Haskell County Bank t. Bank of

Santa F6, 354.
Haskins y. Lumsden, 548.

y. New York Cent. & H. R. R. Co.,
869, 1009.
' V. Royster, 448, 636, 646.
Hass y. Chicago, M. & St. P. R. Co.,

967.
Hasse y. American Exp. Co., 1070.
Hassenyer y. Michigan Cent. II. Co.,

874. •
Hastings v. Crunckleton, 700, 702.

V. Lusk, 528.
Hasty y. Sears, 1035.
Hatch y. Cohen, 611.

V. Donnell, 660, 662.

V. Fuller, 369, 459.

y. Hatch, 698.

y. Matthews, 503.

y. Vermont Cent. R. Co., 140.
Hatchard y. Mege, 329. 552.
Hatcher y. Hampton, 602.
Hatfield y. Central Ry. Co., 412.

V. Rofer & Newell. 984.
Hathaway y. East Tennessee, etc., R.
Co., 933, 951.

y. Illinois Cent. Ry. Co., 994, 999,
1040.

y. Toledo, W. & W. R. Co., 984.
Hathorn v. Conj?ress Spring Co., 522.

V. Richmond, 913.
Hatt y. Evening News Ass'n, 387, 4^,
495.

y. Nay, 1050.
Hatter v. Illinois Cent. R. Co., 1019.
Hatton y. Holmes, 134.
Hauch V. Hernandez, 843.
Hauck y. Tidewater Pipe-Line Co.,

757, 771, 792.
Haugen y. Chicago, M. & St. P. R. Co.,

847.
Haugh*s Appeal, 7(>8, 771.
Hayen y. Foster, 582,

Haven y. Meal, 578.
Havens y. Brie R. Co., 874.
Haverly v. Elliott, 739.
Haverstick v. Sipe, 750.
Hawes v. Knowles, 382, 300.
Hawk y. Evans, 527.

y. Ridgway, 421.

V. Thorn, 27.
Hawkesley y. Bradshaw, 521.
Hawkeye Lumber Co. v. Dlddy. 131.
Hawkins v. Appleby, 732.

V. Capron, 738.

y. Hoffman, 718, 1008.

v. Manston, 422, 423.

y. Raih-oad Co., 1037, 1039.

y. TaylOT, 131.
Hawley v. Butler, 427.

y. City of AUantic, 831.

v. Clowes, 705.

y. Tesch, 292.
Hawn v. Banghart, 457, 459, 460.
Ha worth v. Montgomery, 914.
Hawthorne v. Siegel, 693.
Hawver v. Bell, 715.

v. Whalen, 228, 235, 2.36.
Hay y. Cohoes Co., 288, 772, 848, 850.

y. Reld, 536. 547, 548.

y. Weber, 751, 784, 785, 787, 804.
Haycraft v. Creasy, 55, 150, 563, 565,

587.
Hayden v. Missouri, K. & T. Ry. Co.,
884.

y. Shed, 607.

y. Smithville Mauuf'g Co., 1015,
1044.

v. Woods, 221.
Hayes v. Ball, 498.

V. Bush & D. Manuf'g Co., 1001.

V. Gallagher, 145, 939.

y. Hyde Park, 69.

y. Kennedy, 1062.

v. Massachusetts Mut. Life Ins.
Co., 739.

y. Miller, 256.

y. Mitchell, 419.

y. Norcross, 964.

y. Philadelphia & R. Coal & Iron
Co., 895.

y. Porter, 136.

y. Press Co., 533.

y. Raih-oad Co., 100, 185, 317. 319,
919, 920, 922, 926, 930, 935.

CASES CITED.

1159

[Vol. 1 comprises pages 1-652, indnslTe; yoI. 2 the residue.]

Hayes v. Todd, 544.

Hayman v. Governors of Rugby

School, 148.
Hayn v. CuUlford, 26.
Hayne y. Rhodes, 918.
Hayner y. Cowden, 508.
Haynes v. East Tennessee & G. R.
Co., 1030.

V. Erk, 402, 1006.

y. Xowlin, 468.

v. Raleigh Gas Co., 850, 864, 971.

V. Sinclair, 460.

V. State, 439.

v. Thomas, 33.
Hays V. Askew, 809.

V. Blizzard, 611.

V. Gainesville St. Ry. Co., 817.

V. Gallagher, 939.

V. Kennedy, 1062.

V. Millar, 951.

V. People, 431.
Hayward v. Knapp, 945.

V. Seaward, 729.
Hazard y. Harding, 634.

V. Irwin, 565, 571, 578.
Hazard Powder Co. v. Volger, 724,

925.
Hazel V. Chicago, M. & St. P. Ry. Co.,
301, 305.

y. People's Pass. Ry. Co., 936.
Hazeltine v. Case, 413.

V. Edgiuand, 749.
Hazelton v. Week, 57, 655, 682.
Hazen v. Boston & M. R. Co., 144.
Ilazlehurst v. Brunswick Lumber Co.,

1016.
Hazlett V. Burge, 584.
Hazzard v. Flury, 617.

V. Israel, 139.
Heacock v. Sherman, 186.
Head v. Briscoe, 217.

V. Porter, 111.
Hcadefin v. Cooper, 1045.
Heald v. Carey, 730, 734.

V. MacGowan, 742.
Healy v. Visalia & T. R. Co., 361, 944.

V, Woodruff, 756.
Heaney v. Butte & M. Commercial Co.,
692.

v. Long Island R. Co.. 884.
Heam v. Blttorman, 728.
Heame v. Stowell, 533.

Heartt v. Kruger, 752.
Heath v. Doyle, 311.

V. Randall, 684. 685.
Heaven v. Pender, 895, 905, 906.
Hebler v. McCartney, 1062.
Heckle v. Lurvey, 218, 222.
Hector v. Boston Electric Light Co.,

861, 891, 929.
Hedden v. Griffin, 559.
Hedges v. Tagg, 451-^53.
Hedin v. City & Subm-ban Ry. Co.,
195.
V. Institute, 580.
Heeg V. Licht, 771, 847.
Heeney v. Sprague, 97, 919.
Heenrich v. Pullman Palace-Car Co.,

258.
lIcHTuianee v. .Tames, 466.

V. Vernoy, 677.
Hefferen v. Nortliern Pac. R. Co., 094,

i()r)3.

Ileffron v. Rice, 20(].
Ilegan v. Railway Co., 971.
Hegerich v. Keddie, iWl, ;i'U.
Ileidenheimer v. Loring, 43.
lleigel V. Wichita Co., 182.
Heil V. Glanding, ;J94.
Heiligmann v. Rose, 694.
Heilman v. Shanklin, 522.
Helnekamp v. Beaty, 739.
Helnrich Bjorn. The, 110.
Heinrlchs v. Krechner, 453.
Heirn v. McCaughan, 471, 903, 904.
Ileizer v. Kingsland & Douglass Man*

uf'g Co., 908.
Hellams v. Switzer, 794.
Heller, In re, 155.

v. Charleston Phosphate Co., 316.
Helling V. United Order of Honor,

3J0.
Holm V. O'Rourke, 990.
Helmke v. Stetier, 1003.
Helton V. Railway Co., 103.
Hpltonvllle Manuf'g Co. v. Fields, 990.
Hemann v. W. U. Tel. Co., 307.
Ilombling v. City of Grand Rapids, 69,

808.
Heminway v. Heminway, 441.
Hemmens v. Nelson, 496.
Hemmer v. Cooper, 578.
Hoinmwell v. Drixbury, 602,
Heinpfing v. Burr, 735.

1160

CASES CITED.

[Vol. 1 comprises pages 1-G52, inclusive; toI. 2 the residue.]

Hempstead v. Cargill, 339.
Hendershott v. City of Ottumwa, 178.
Henderson v. Broomhead, 527.

V. Chicago. R. I. & P. Ily. Co., (>»4.

V. Fox, 545.

V. Hale. 494.

V. Henderson, 408.

V. Henshall, 580, 591, 597.

V. McReynolds, 4a'i, 430.

V. Midland Co., 1(W.

V. Philadelphia & R. R. Co., 844.

V. St. Paul & D. Ry. Co., 404, 8<J0.

V. Smith, 134.

V. Wabash R. Co., 414.
Ilendrick v. McCrary, 459.
Hendricken v. Meadows, 894.
Hendricks v. Evans, 731).
Hcndriclison v. Kingsburry, 395.

V. SulUvan, 503.
Hendrlks v. Montagu, 551,
Henke v. McCord, 123, 130.
Henkle v. Scliaub, 493.
Henly v. Mayor, 9.

Hennessey v. City of New Bedford,
170.

Hennessy v. City of Boston, 954, 997.
Hennies v. Vogel, 471.
Henry v. Central Railroad & Bank-
ing Co., 1004.
V. Dennis, 829.
V. Klopfer, 470, 472, 880.
V. Pittsburgh, 142.
V. Railway Co.. IS, 374^76, 378.

S<SO. 1024.
V. TrustiH's. 8(K4.
Henry Bill Pub. Co. v. Durgin, 710,
738.

Hensal v. Wriglit, 703.

Henshaw v. Noble, 287.

Henwood v. Harrison, 534, 535, 537.

Hepburn v. City of Philadelphia, 238.

V. Sewcll. 721.
Hepfel V. St. I*aul, M. & M. Ry. Co.,

198, 987.
Herbert v. Lukons, 937.

V. Rainey, 808.
Hergenrather v. Spielnmn, Oil.
Herin v. McCaughan, JHM.
Herlofs Hospital v. Ross, 124.
Hennans v. New York Cent. & H. R.

R. Co., 887.
Hem V. Nichols, 250, 2(>9.

Heme v. Bembow. 697.
Heron v. Hughes, 55.
Herre v. City of Lebanon, 68.
Herreshoflf y. Tripp, ;W7.
Herrick v. Gary. 858.

V. Minneapolis & St. L. R. Co..
103, 1055.
Herring v. Boyle, 421.
Herron v. Hughes, 80, 038. 723.
Hersey v. Chapin, 604.

V. Walsh. 739.
Hershey v. O'Neil, 263.
Herstine v. I^high Val. R. Co.. 1085.
Hertzog v. Hertzog. 20.
Herzog v. Graham. («0, 631.
Hess V. Lap ton, 196.

V. Sparks. 504.
Hesse v. Knippel, 913.
Hestonville Pass. R. Co. v. Connell.

197.
Hetfield v. Central R. Co.. 683, 685.
Hetherlngton v. Sterry, 513.
Hett V. Pun Pong, 917.
Hewett V. Swift, 1158, 253, 289.
Hewey v. Nourse, 843.
Hewison v. City of New Haven, 766,

838.
Ilewit V. Mason, 509.
Hewitt V. Eisenbart. 391, 912.

V. Newburger. 418, 422, 426.

V. Pioneer Press Co., 547.

V. Prime. 452, 458.
Hewlett V. Cruchley, 021.

V. George. 430, 403.
Hexamer v. W^ebb. 2,32.
Hcxter v. Bast, 559, 570.
Hey V. Moorhouse, 086.
Heydon*s Case, 342.
Heyler v. New York News Co., 513.
Hey wood v. Tillson. .56, 645, 647.
Hibbard v. Ryan, 608, 614.

V. Thompson, 972.

v. W. U. Tel. Co., 3(»7.
Hibbard, Spencer, Rirtlett & Co, v.
Ryan, 526.

Hibernia Bldg. Ass'n v. McCJrath,

901.
Hichcock V. Burgett, 970,
Hickenbotton v. Delaware, L. & W.

R. Co., 860.
Hlckey v. Balrd. 306.
V. Morrell, 579.

GASEB CTTED.

1161

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

HicJiey T. Railroad Co., 800, 956.

V. Taaflfe, 1002.
Hickham v. Hickham, 340.
Hicks V. GitizeDs' Ry. CJo., 861.

y. Dom, 801.

y. Downling, 840.

V. Faulkner, 615, 616, 625.

V. Herring, 412.

V. Stevens, 596.
Hicks* Case, 482.
Hiett V. Shull. 154.
Higgen's Case. 321.
Higginbotham v. Com., 113.
Higgins, In re, 643, 649.

V. Butcher, 327.

V. Dewey, 78, 376, 842, 843.

V. McCabe. 911.

V. Minaghan, 440.

V. Walkem, 512.

y. Western Union Tel. Co., 233,
244.

V. Whitney. 721.
Higginson v. York. 654.
Higgs V. Maynard, 940.
High V. Berret, 602.

V. Carolina Cent. R. Co., 831.
Highland Ave. & B. R. Co. v. Dono-
van, 1086. 1090.

V. Maddox, 823.

y. Walters, 201.

v. Winn. 82,'>.
Highman v. Vanosdol, 466, 467.
Higley V. Gilmer, 950.
Hilbery v. Hatton, 57. 722.
Hildebrand v. McCrum, 418, 419.
Hiles V. Case. 208.
Hill V. Balls, 586, 858, 908.

V. Bartholomew, 660, 691.

V. Board. 178.

V. Boston. H. I. & W. R. Co., 305.

V. Charlotte. 175.

V. City of Boston, 178, 1S3, 185,
187.

V. City of New York, 784, 790, 805.

V. Covell. 727.

V. Davis. 27.

Y. Duriiam House Drainage Co.,
531, 543.

V. Goodchild, 214.

V. Gray, 575.

V. Hayes, 735, 730.

Hill v. Louisville & N. R. Co., 930.

V. Miles. 528.

V. Morey. 266.

V. Perrott. 27.

V. Portland & R. R. Co., 948, 950.

V. Pride, 122.

v. Scott 880.

y. Sheehan, 266.

y. Smith. 673.

y. Snyder, 951.

y. Taylor, 419, 421, 430.

v. United States, 112.

V. Ward, 551, 553.

V. Warren, 977.

V. West End St. Ry. Co., 1090,
1093.

y. Winsor, 374, 376, 886.
Hillard y. Richardson, 46, 232,
Hilliard y. Goold. 443.
Hillman v. Wilcox, 559.
Hills V. Snell. 718.

Hillyard v. Grand Trunk R. Co., 887.
Hilman v. Newington, 213.
Hilmes y. Stroebel, 210, 211.
Hilton V. Earl, 777.

y. Eckersley. 643.

y. Granville, 753.
Hinchman v. Patterson Horse R. Co.,
789, 806.

v. Weeks. 588. 589.
Hinckle y. State, 462.
Hinckley y. Baxter, 717.

v. Emerson. 152, 153.

v. Krug. 917, 959.
Hindman v. Rizor, 760.
Hinds V. Barton, 844, 845.

v. Harbou, 281.

V. Jones. 217.

V. Keith. 9*4.

V. Overacker, 281.
Hines v. Lockport, 129.

v. New York Cent & H. R. R.
Co.. 923. 928, 1014.
Hinkle v. Minneapolis & St. L. Ry.
Co., 313. 315.

V. Richmond & D. R. Co., 831,
881, 887.
Hinks V. Hinks. 661.
Hinson v. Powell, 624, 625.
Hinton y. Dibbins, 819.
Hintz V. Graupner, 518, 549,

1166

CASES CITED.

[Vol. 1 comprises pages 1-662, inclusiye; yoI. 2 the residue.]

Hunt v. Simonds, 56.
Hunter v. Blount, 913.

Y. Burlington, G. R. & N. R. Co.,
337.

y. City of Mexico, 391.

y. Ck>lambia, N. & L. R. Co., &16.

y. Cooparstown & 8. Y. E. Co.,
956.

y. Cronlshite, 710.

y. Farren, 316, 661.

y. Mathis, 120.
Hunter's Estate, In re, 30.
Huntington, I. & C. Turnpike Co. v.

Bix>wn, 98.
Huntln^rton & B. T. R. Co. y. Englisli,

741.
Huntoon y. Hazelton, 449.
Huot y. Wise, 466.
Hupfer y. Rosenfeld, 513.
Hurd y. Fleming, 190.
Hurdman y. Northeastern Ry., 761.
Hurlbut y. Boaz, 616, 622.
Hurlehy y. Martine, 429, 430.
Hurley y. Jones, 654.
Hurrell v. Ellis, 98.
Hurst y. Gwennap, 722.

y. Railroad Co., 261, 1027.

y. Taylor, 887.
Hurwitz V. Hurwitz, S8.
Husdon V. Northern Pac. R. Co., 107(».
Huson V. Dale, 547.
Hussey y. Coger, 1041, 1043.

V. King, 855.
Huston y. Plato, 559.
Hutcheson y. Peck, 466, 467.
Hutchlngs V. Castle, 707.
Hutching v. Brackett, 138.

V. Hutchins, 88, 556, 602, 638, 773.

y. Smith, 769.
Hutchinson v. Boston G. L. Co., 821,
849.

V. City of Ypsllanti, 178.

V. Granger, 383.

V. Horn, 454.

V. Hutchinson, 352.

V. I^ewis, 526.

V. Railway Co., 288, 289, 305, 332,
911, 1029, 1074.
Hutchison v. Birch. 675.
Hut ton V. Eyre, 345.
Huxley V. Berg, 392.

Hyatt V. Adams, 328, 470, 471.

y. Allen, 351.

y. State, 111.
Hyde y. Brush, 135.

y. Cooper, 46.

y. Graham, 683L

V. Greuch, 611.

y. Jamaica, 185.

y. McCabe, 528.

y. Noble, 682.

y. Stone, 364.

y. Wabash, St. L. & P. R. Co., 330.
Hyde Park y. Gay, 98, 149, 882, 925.
Hydraulic Engineering Co. y. McHaf-

fle, 372.
Hyfleld v. Brass Furnace Co., 629.
Hyland y. Transfer Co., 791.
Hyman y. Cent. Vt. R. Co., 107a

y. Helm, 102.
Hyne y. United States, 112.

laquinta v. Citizens' Traction Co., 862.
Ide v. Bremer Co. Bank, 285.

y. Gray, 88.
Ilor V. Baker, 727, 741.
llifiT y. School Directors, 805.
Illege V. Goodwin, 74.
lllldge y. Goodwin, 59, 266, 880.
lllingsworth v. Boston Electric Light

Co., 929.
Illinois Cent. R. Co. y. Adams, 1075.

y. Allen, 200.

y. Axley, 1081.

V. Beard, 892.

V. Bowles, 963, 1008, 1010.

V. Brookhayen Mach. Co., 1070.

V. Copeland, 1077.

V. Cox, 1034, 1036.

y. Cragin, 165, 873, 943, 1085.

V. Davidson, 1086.

V. Dick, 978.

V. Downey, 255.

V. Foley, 953.

V. Frankenberg, 1072.

V. Godfrey, 192.

V. Hammer, 396, 397.

V. Handy, 244.

V. liaynes, 1076.

CASES CITED.

1167

[Vol. 1 comprises pacres 1-652, incIusiTe; vol. 2 the residue.]

Illinois Cent R. Co. v. Kerr, 1072.
V. King, 229, 423.
V. Larson, 885.
v. Latham, 262.

V. MlUer, 761.
V. MiUs, 844.
V. Nowiclcl, 943.
V. Peterson, 1075.
V. Phillips, 851, 1085.
V. Scruggs, 1074.
V. Spence, 103a
V. Taylor, 1093.
V. Turner, 955.
V. Varnadore, 930.
V. Welch, 317, 318.
Illinois River Paper Co. v. Albert,

1012.
Illinois & St. L. R. & Coal Co. ▼.
Cobb, 658.
V. Ogle, 393.
Ilott V. Wilkes, 200, 768.
Ilwaco R. & Nav. Co. v. Hendrick,

830.
Imperial Rolling Mill Co. v. First Nat.

Bank of Cleburne, 633.
Improvement Co. v. Munson, 951.
Inchbald v. Robinson, 777.
Independent Bldg. & Loan Ass'n v.

Real Estate Title Co., 269.
Inderlied r. Whaley, 673, 682.
Indermaur y. Dames, 892, 893.
Indiana, B. & W. Ry. Co. v. Burdge,
825.
V. Greene, 932.
V. Hammock, 932.
V. Kooub, 408.
Indiana Manuf'g Co. v. Millican, 333.
Indianapolis v. Gaston, 400.
Indianapolis, B. & W. Ry. Co. v. Beav-
er, 1080.
V. Smith, 763.
Indianapolis, D. & W. Ry. Co. v.

Forsythe. 300, 904.
Indianapolis Journal Newsimper Co.

V. Pugh, 495, 496, 549.
Indianapolis, P. & C. R. Co. v. Allen,
1075.
V. Bush, 564.
V. Pltzer, 197. 1091.
Indianapolis R. Co. t. Caldwell. 33.

Indianapolis Union Ry. Co. y. Boett-
eher, 822, 825, 828.
V. Cooper, 262, 1091.
V. Ott, 1027.
Indianapolis Water Co. y. American

Strawboard Co., 744, 806.
Indianapolis & St. L. R. Co. y. Hern-
don, 719.
V. Horst, 1080, 1084.
V. Staples, 368.
y. Watson, 1026.
Indiana Stone Co. v. Stewart, 975.
Ingalls V. Bills, 1083.
V. Bulkley, 729.
y. Milltr, 598.
V. Newhall, 668.
Ingerman v. Moore, 1023.
Ingersoll v. Jones, 453, 454, 459.
Ingle V. Bell, 428.
Ingraham v. Dunnell, 804.
Ingram v. Lawson, 473.
Ingwersen v. Rankin, 220. 795.
Inhabitants of Brooktield y. Walker,

885.
Inhabitants of Lowell v. Boston & I^.

R. Co., 186.
Inhabitants of Melrose v. Cutter, 354.
Inhabitants of Shrewsbury v. Smith,

835.
Inhabitants of Township of Hamilton

y. Wainwright, 764.
Inhabitants of Township of Raritan

V. Port Reading R. Co., 804.
Inhabitants of Westfleld v. Mayo, 283.
Inhabitants of West Orange v. Field,

ICA.
Inland & Seaboard Coasting Co. y.

Tolson, 939, 941, 974.
Inman y. Elberton Air Line R. Co.,

S45.
Inness v. Wylie, 149.
Innis v. Cedar Rapids, I. F. & N. W.

Ry. Co., 744, 784.
Insurance Co. v. Brame, 327.
V. Egfileston, 583.
V. Mo wry, 583.
V. Tweed, 77.
Insurance Cos. v. Carriers* Cos., 193.
International & G. N. R. Co. v. An-
derson. 306.
y. Brazzil, 320.

1168

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; rol. 2 the residue.]

International & G. N, R. Co. v. De
Bajligethy, 890.

V. Dimmitt Ck>. Pasture Co., 363.

V. Flores, 1087.

V. Greenwood, 544.

V. Hall, 895.

V. Hinzie, 312, 1005, 1023.

V. Miller, 245, 397.

V. Neff, 883.

V. Ryan, 261.

V. Terry, 377.

V. Thornton, 308.

V. Welch, 1084.

V. Wentworth, 1076.
Interstate Commerce Commission v.
Cincinnati,, N. O. & T. P. Ry. Co.,
1007.
Investigating Commission, In re, 115.
Ireland v. Elliott, 445.

V. McGarvlsh, 508.

V. Oswego Plank-Road Co., 185.
Ireson v. Pearman, 915, 917.
Irion V. Lewis, 118.
Irish V. MUwaukee & St. P. Ry. Co.,
1072.

V. Northern Pac. R. Co., 1091.
Irish- American Bank v. Bader, 507.
Iron Age Pub. Co. v. Crudup, 494,

504.
Iron Mountain R. Co. v. Bingham, 140.
Irons V. Field, 509.
Ii-vin V. Fowler, 145.

V. Wood, 797.
Irvine v. Wood, 145, 214, 766, 796.
Irwin V. Dear man, 454, 455.

V. Dlxion, 804.

V. Janesville Cotton Mills, 754.
Isaacs V. Barber, 756.

V. Railroad Co., 171, 255, 262.
Isabel V. Railroad Co., 198.
Isack V. Clarke, 712.
■Isbell V. New York & N. H. R. Co..

198.
Isear v. Burstein, 3(53.
Iseloy V. Ijovejoy, 100.
Isham V. Parker, 916.
Islands, The, 1084.
Israel v. Brooks, 621.

V. Clark. 1085.
Ivay V. Hedges, 891.
Iveson V. Moore, 380, 7S4, 785.

Jacaoby v. Laussatt, 725.
Jackel V. Relman. 693, 694.
Jackman v. Arlington Mills, 761.
Jacks V. Lollls, 801.
Jackson v. Allen, 584.

V. Babcock, 682.

V. Bell 389, 622, 626.

V. Brownson, 699, 702.

V. Castle, 102, 765.

V. City of Greenville, 177.

V. Collins, 596.

w Courtenay, 442,

V. Hopperton, 516.

V. King, 156.

V. Klrby, 217.

V. Llnnlngton, 625.

V. Parkhurst, 665.

V. PhiUlps, 188.

v.. Pittsburg Times, 535, 53a

V. Railroad Co., 73. 168, 255. 333,
354, 355, 1027, 1084, 10»k
1089, 1092.

V. Shaw, 920.

V. Smlthson, 854, 866.

V. Stanfield, 379, 646. 6.">1.

V. State, 449, 450.

V. Todd, 692.

V. Tollett. 1083.

V. Wisconsin Tel. Co., 6^)., 374, 82a
Jacksonville Journal Co. v. Beymer,

483, 486, 505, 509.
Jacksonville, T. & K. W. R. Co. v.
Galvln, 1015.

v. Garrison. 401.

v. Jones. 941.

y. PenlnsulaiT Land, Transp. &
Manuf g Co.. 361.

V. Prior, 928.
Jacksonville & S. B. Ry. Co. v. South*

worth, 817. 824.
Jackson & Sharpe Co. v. Philadel-
phia, etc., R. Co., 686.
Jacob V. Lorenz, 354.
Jacobs V. Day, 311.

V. Frederick, 340.

V. Hoover, 436. 446.

V. Louisville & N. R. Co., 979.

V. Schmaltz, .^)12.

V. Seward, 008, 732.

CASES CITED.

1169

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Jacobs* Case, 978.

Jacobsmeyer v. Poggemoeller, 856.

Jacobsohn v. Blake, 680.

Jacobson v. Siddal, 465.

Jacobus V. St. Paul & C. R. Co., 301,

972, 1083.
Jacoby v. Ockerhausen, 856.
Jacquay v. Hartzell, 60**
Jaffray v. Davis, 315.
Jaggard v. Wlnslow, 581.
Jagger v. Bank, 876.
James v. Boston, 539.

V. Campbell, 58.

V. Christie, 327.

V. David. 314.

V. Dixon. 692.

V. Hayward, 7(55.

V. Hodsden, 589.

V. James. 63.

V. Miles. 688.

V. Missouri Pac. Ry. Co., 893.

V. Rutlech, 485.

V. Worcester, 667.
Jameson v. Kent, 352.
Jamfeson v. Millemann, 683.
Jamison v. AVeaver, 917.
Jamison & Co.*s Estate. In re, 739.
Janesville v. Milwaukee & M. R. Co.,

143.
J' Anson v. Stuart, 525.
Janyrin v. Curtis, 216.
Jaques v. Stewart. 741.
Jaquinta v. Citizens' Traction Co..

955.
Jarman v. Chicago & G. T. Ry. Co.,

1038, 1045.
Jarmy v. Duluth. 1093.
Jarvis v. Dean, 891.

V. Rodgers, 738.
Jasper Trust Co. v. Kansas City, M.

& B. R. Co., 271.
Jay V. Almy, 150.

V. Wbltefield. 768.
Jaynes v. Jaynes, 94, 468.
J. C. Stevenson, The, 1061.
Jean v. Pennsylvania Co., 801.
Jeansch v. Lewis, 952.
Jefeoat v. Knotts, 668.
Jefferies r. Duneombe, 477.

V. Laurie, 121.
Jefferis v. Philadelphia, W. & B. Ry.
Co., 965.

LAW OF T0KT8— 74

Jefferson v. Hale, 707, 738.
Jefferson School Tp. of Green ("o. v.

School Town of Washington, 338.
Jeffersouville v. Ferry Co., 186.
Jeffersonville, M. & I. R. Co. v. Riley,

77. 378, 381, .382, 1091.
Jeffersonville R. Co. v. Hendricks,
957.

V. Rogers, 172.

V. Swift. 957.
Jeffery v. Biglow, 814.
Jeffrey v. Railway Co., 948.
Jeffries v. Ankeny, 135.

V. Great Western Ry. Co., 669,
713.

V. McNamara, 425.

V. Williams. 101.
Jeffs V. Railway Co., 78.
Jellett V. St Paul, M. & M. Ry. Co..

715.
Jencks v. Kenny, 752.
Jenings v. Florence, 61^2.
Jenkins v. Ballantyne, 784.

V. Clyde Coal Co., 318.

V. Fowler, 33, 49, 56, 645, 773.

V. French. 330.

V. Lykes, 683, 684.

V. McConico, 739.

V. Mitchell. 352.

V. Railroad Co., 882, 1036, 1038,
1043.

V. Turner. 854.

V. Waldron, 135.

V. WUmington & W. R. Co., 761.
Jenks V. Williams, 56, 750, 765, 773.
Jenne v. Gilbert, 578.

V. Sutton. 851.
Jenney Electric Light & Power Co. v.

Murphy, 1016.
Jennings v. D. G. Burton Co., 856.

V. Dolan. 342.

V. Florence, 606.

V. Fundeburg, 50, 654.

V. Gibson, 655.

V. Grand Trunk Ry. Co., 309, 88^^.
1071. 1072.

V. Ix)ring. 366.

V. Rundall, 159, 163.

V. Thompson, 425.
Jennings Bros. & Co. y. Bcale, 354»

357.
Jenoure v. Delmege, 517, 530.

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(12)

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\

I

3 bios OtS QOA 375

1181

CASLS CITED.

[Vol. 1 comprises pages l-<io2, iticIiiBive; vol. 2 the residae.]

Lusk y. Belote, 90*J.

LuBted V. Chicago & N. W. Ry. Co.,

318.
Lutterell v. Ueynell, 11.
Luttrell V. Hazen. «54, (r»(k
Lutz V. Atlantic & P. K. Co., 10r)3.
T.yberg v. Northern Pac. R. Co., 1020.
Lybe's Appeal, 758.
Lychfleld Coal Co. v. Taylor. 822.
Lyde y. Barnard, 20.
Lydlan Monarch, The, 30(j.
Lyenberger v. Paul, (514.
Lyle V. Clason, 480.
Lyman v. Boston & W. R. Co., 846.

y. Edgerton, 134.

v: Hale, 690.
Lynam y. Gowlng, 526.
Lynch v. Allyn, 1003.

V. City of New York, 179, 704.

V. Commonwealth, 917.

V. Davis, 470.

V. Erie City, 903.

V. Feblger, 540.

y. Hubbard, 808.

y. Knight, 308, 373-375, 468. 489-
491.

V. Lerche, 401. *

y. McNally, 962.

V. Mercantile Trust Co., 270, 569.

V. Nm-dln. 74, 161, 106, 2(56, 872,

V. Railroad Co., 69, 109, 278. 418,
419, 880, 884, 987, 988.

V. Smith, 872.

y. Village of New Rochelle, 879.
Lynde v. Columbus, C. & L C. Ry.

Co., 323.
Lyndsay y. Connecticut & P. R. Co.,

935.
Lynn y. Adams, 128.

y. Bruce, 314.

y. Southern Pac. Co., 1090.
Lyon y. Fairbanks, 688.

V. Fishmonger's Co., 786.

y. Gormley, 724.

y. Mells, 1068.
Lyons y. Adams, 127.

V. Briggs, 579.

y. Child, 192.

V. Martin, 250, 253.

y. Rosenthal, 939.

y. Third Ave. Ry. Co., 331.
Lysle, The Tom, 875.

Lysney v. Selby, 588.
Lythgoe y. Vermon, 296.
Lyttle y. Chicago & W. M. Ry. Co.,
995.

M

McAdoo v. Railroad Co., 817. 819, 822,

831. 961.
McAleer y. Horsey, 595.
McAIlaster v. Bailey, 132.
McAUlster y. Chicago, R. I. & P. Ry.
Co., 1074.
y. Detroit Free Press, 482, 500. 533.
McAlpin V. Powell. 197.
Mo Andrews y. CoUerd, 771, 778, T92.

848.
McArthur v. Cornwall, 693.

y. (ireen Bay & Mississippi Oinal

Co., 194.
V. Searh, 70, 1062.
Macarthy v. Younge, 892.
McAulay v. Birkhead, 460.
McAvoy v. Wright, 214.
McAwnlch y. Mississippi & ISl. R, Co.,

1055.
McBee y. Fulton, 532.
McBride v. Board of Com'rs. 699, 7a\
McBroom y. Thompson, 686.
McCabe v. Brown, 40.

y. State. 434.
McC^afferty v. Railway Co.. 228, 236.
McCaffrey v. Twenty-Third St. Ry.

Co., 858.
McCaffrey's Appeal, 776, 777.
McCall v. Cohen, 123.
y. Forsyth, 28, 902.
McCalla v. Clark, 738.

y. Multnomah Co., 185.
McCall's Adm*r v. Capehart, 660, 061.
McCallum y. Germantown, 774.

y. Lamble, 484.
McCamus y. Citizens* Gaslight Co.,

145.
McCandless y. McWha, 912.

v. Richmond & D. R. Co., 927.
McCann v. Eddy, 308.

y. Wolff, 57.
McCaraher y. Com., 133.
McCardle y. McGlnley, 609.
McCam v. International & G. N. R.
Co., 308.

CASES CITED.

1185

[Vol. 1 comprises puffes 1~C52, inclusive; vol. 2 the residue.]

McCarroll v. Stafford, 718.
McC'arthey v. City of Syracuse, 234.
McCarthy v. Boston & L. R. Corp..
451.

V. De Armit, 215, 428, 621.

V. (iuild, 449.

V. Ilolmun, 650.

V. Tiouisville & N. R. Co., 1072.

V. Portland, 177.

V. York Co. Sav. Bank. 790.
McCarty v. Gulf, C. & S. F. Ry. Co.,
307.

V. Ix)ui8vUle & N. R. Co., 1(X>4.
McCaslin v. Lake Shore & M. S. Ry.

Co.. 958.
McCauley v. Elrod, 504, 545.

V. Ijogan, 05.

V. Norcross, 837, 1054.
McCaull V. Bruner, 859.
McCawley v. Railway Co., 300.
McClafferty v. Phllp, 620, 621.
McClain V. Incorporated Town of Gar-
den Grove, 69.
M'Clallen v. Adams, 202.
McClaugherty v. Cooper, 522, 523.
McCleary v. Frantz, 852, 955.
McClellan v. St. Paul, M. & M. Ry
Co., 68, 670.

V. Scott. 571, 596.

V. Wyatt, 738.
McCleneghan v. Reid, 519, 520.
McCIoskey v. Powell, 670.

V. Ryder, 695.
AlcClue V. Klein, 437.
McClung V. Dearborne, 255, 200, 275.
McClure v. Miller, 455.
McClurg V. Ross, 492.
McComber v. Nichols, 766.
McConibie v. Da vies, 711, 722-724, 734.
McCouigle V. Kane, 1024.
McConnoU v. Bostlemann, 765.

V. Hughes, 559.

V. Kibbe, 398.

V. Oi-y, 552.
McCool V. Lucas Coal Co., 1005.
McCoombs v. Tut tie, 481.
McCord V. High, 128, 825.

V. Mining Co., 700, 701, 706.

V. Western Union Tel. Co., 271.
McCormick v. Kelly, 591.

V. Railroad Co., 727, 720, 738, 928.

V. Sisson, 612.

LAW OP TORTS— 76

McCormick v. Washington Tp., 1S2.
McCormick Harvesting Macli. Co. v.

Burandt, 994, 1010.
McCosker v. Long Island R. Co., 1040,

1011.
McCoy V. Danley, 413.

V. Keokuk & D. M. R. Co., 1074.

V. Milwaukee St. Ry. Co., 388. :W1,
4(K).

V. Trucks, 457, 458, 460.
McCranle v. Wood, 106;i.
McCrea v. Muskegon Circuit Jud^'c.

353.
McCreary v. Jones, 322.
McCrew v. Stone, 375.
McCniden v. Rochester Ry. Co., 695.
McCue V. Klein. 203.

V. National Starch Manufg Co.,
1005, 1016.
McCullen v. Scott, 581.
McCuUough V. City of Denver, 692.

V. Floyd, 352.

V. Railroad Co., 15, 94, 983, 1044.
McCully V. Claike, 935.
McCune v. Railroad Co., 303, 1060,

1076.
McDaneld v. I^gi. 887.
McDaniel v. Baca, 553.

V. Needham, 430.

V. Railway Co., 243, 10i>r>, 1074.

V. Tebbetts, 118, 120.
McDaniels v. Cutler, 663.

V. Walker, 85, 189.
MacDonald, In re, 504.
McDonald v. City of Red Win;,', 149.

V. Mallory, 14.

V. Massachusetts (Jen. Hospital,
187, 914.

V. Montana Wood Co., 6JU.

V. Neilson, 133.

V. Press Pub. Co., 510.

V. Railway Co., 893, 923, 930, mi,
1008, 1023, loss.

V. Snelling, 58, 71, 37a
McDonnald v. Walter. 404.
McDonough v. Oilman, 22fJ.

V. Lanpher, 820.
McDougald v. Cowan, 159.
M'Dougall V. Claridgo, rA2.
Macdougall v. Knight, .530, 533.
McDowell V. The France, 402.

V. Railway Co., 327.

1180

CASES CITED.

[Vol. 1 comprises images l-<>52, iuclusire; toI. 2 the residue.]

MoDuflT V. Detroit Evening Journal

Co.. 4»1.
MeKacherun v. Michigan (Vut. R. Co.,

:jo8.

V. Western Trausp. Co.. r*!)^.
McElfresh v. Kirltemlall. 2li>, 220,

McKllIgott V. Randolph, 1043.
McElwee v. Blackwell, rutl\.
McEntee v. Steamboat Co., 719.
Mo E wen v. Shannon, 202.
Macey v. (Miiklress, 610.
McFadden v. Lynn, 27.S.

V. Missouri Pac. Ry. Co., 30:J, lOoT,
1075.

V. RauHCh, 809.

V. Schiii, 213, m:\.

V. Schroeder, 708.

McFadzeu v. Olivant, 4o0.

MoFarland v. Swlhart, 887.

McFerrau v. Taylor. 5(50. 570.

Mc Fetors v. Piersou, 060.

Mclrahau v. Indianapolis Natural (;:i«
Co.. 78.

MoGahey v. Virginia, 111.

McGari-aliau v. La vers, 422.

McGarry v. New York & H. R. Co.,
857.

McGary v. Lafayette, 180. 181.

McGee v. Fox, 754.

McGee Irrigating Ditch Co. v. Hud-
son, 750.

McGottigan v. Potts. 751, 8uH.

McGhee v. Shafer. 342.

McGibbons v. Wilder, 571. 597.

McGill V. Railway Co., 88:^ 923.
V. Rowland, 1077.
V. Soutlieru Pac. Co., 1038.

McGinn v. Tobey, 596.

McGinuis v. Erie Co., 336.

McGlnty v. Athol Reservoir Co.. 1047.

McGivern v. Wilson, 955.

McfJlynn v. Railway Co., 320.

McCioldrick v. New York Cent. & H.
R. R. Co.. 853.

McGonigle v. Kane, 945, 1024.

AIcGovern v. Central Vt. R. Co.. 1051.
v. New York Cent, & H. R. R. Co..
327.

McGowan v. Missouri Pac. Ry. Co.,
801.

McGrath v. Merwin, 192, 194.

McGrath v. Railway Co., 882, 926, 9T«.
1017. 1018, 1048.
V. Rogers, 1048.
V. W^alker, 223. 224.
Mc(fregor v. Brown, 701, 702.

V. Thwaites, 533.
McGrew v. Stone, 9, 65.
McGuerty v. Hale, 949, 999, lOir.

1040, 1045.
McGulre v. Bloomlngdale, 148, 8ii7.
V. Goodwin, 620.
v. Grant, 751.

V. Vicksburg, S. & P. R. Co., Si*'.
989.
McGuirk v. Shattuck, 1015.
McHose V. Earnshaw, 602.
McIIvain v. Porter, 696.
Mclntlre v. Levering, 621.

V. Roberts, 888.
Mclntlre St. Ry. Co. v. Bolton, SWl.

9J»2.
Mcintosh V. Lown, 408.
Mclntyre v. Green, 682.

V. Sholty, 135. 156, 159.
Mclntyre Tp. v. Walsh, 2l».
McKaig V. Northern Pac. R. Co., IfK^.
McKamy v. Cooper, 1(>4.
Mackny v. Commercial Bank. 169. 3K«.
MirKay v. State, 9, 433.
MeKean v. Railroad Co., 975.
McKee v. Chicago, R. I. & P. R. Co..
1011.
V. Ingalls, 165, 166, 504.
V. President, etc., of Delaware A:

H. Canal Co., 754.
V. State, 598.
McKeel v. Bass, 205.
McKeen v. Morse, 310.
McKenna v. Baessler, 73. 152, 154.
McKennon v. Vollmar, 570.
McKensie v. Missouri Pac. Ry. Co.,

612.
^IcKenzle v. Denver Times Pub. Co.,
505,
V. McLeod, 841, 842.
McKeown v. Johnson, 217.
McKillop V. Duluth St Ry. Co., H'.

861.
Mackin v. Alaska Refrigerator Co.,

1005.
McKinley v. Chicago & N. W. By. Co.,
262.

.^

CASES CITED.

11S7

[Vol. 1 comprLsos pages 1-652, iuclusire; vol. 2 the residue.]

McKinnon v. VoUmar, 270.
McLaren v. Willlston, 1000.
Mcl/ttug:hlin v. Armfleld, 921.
V. Charles, 526,

V. ('orry, *^81.

V. Cowley. r>26. 528.

V. Inyestnient Co., 359.

V. Kemp, 220.

V. Pryor, 982.

V. Waite, 710.
^Ic'Lean v. Burbank. 1084.

V. New York Press Co., 475, 503.

V. Warring, 494, 522.
McT^ndon v. State, 131, 425.
McLennan v. Lemen, 3o2. 735.
McIx»unon v. Richardson, 428.
McT^eod V. Jones, 677.

V. Tutt, 559.

V. Wakley, 536.
McLimans v. City of Lancaster. 174.
McLoughlin v. New York Lighterage

Transp. Co., 229, 232.
McMahon v. City of New York, 334.

V. DaTldson, 70, 851.

V. Hallock, 495.

V. Kelly, 880.

V. Railroad Co., 369, 988.
:M'Manus v. Crickett, 253, 255, 277.

V. Lancashire & Y. Ry. Co.. 301,
1058.
MoMenomy v. Baud, 806, 807.
McMillan v. Ferrell, 691.
McMillen v. Michigan S. & N. I. R.

Co., 309. 310.
McMlllin V. Staples, 773.
McMlnn v. Pittsburgh, V. & C. Ry.

Co.. 200, 202.
McMullen v. Hoyt, 229.
McMurtry v. Louisville, N. O. & T.

R. Co.. 942.
M'Naghten's Case. 10.
McXail V. Zlegler, 714.
McNair V. Toler, 107.

V. Wilcox, 711.
McNally v. Colwell, 843.

V. Oldham. 533.
McNamara v. Logan, 1015.

V. :MacDonough, 1046.

V. New York Cent. & IL R. R.
Co., 928.
McNamee v. Minke, 608.
McNaiighton v. Quay, 523.

McNay v. Stratton. 420, 429.

McNeely v. Hyde, 326.

McNeil V. New York, L. B. & W. R

Co., 1017.
McNerney v. Reading City, 99. 705,

889, 920.
McNevins v. Lowe, 912, 914.
McNulta V. Ralston, 144.
Macomber v. Nichols. 79, 820, 828.
Maconnehey v. State, 166.
Macon & W. R. Co. v. Holt, 718.
McPherson v. Daniels, 513, 548.
V. Runyon, 609, 629.
V. St. Louis, L M. & S. Ry. Co.,

827.
V. Seguine, 667.
V. State. 441.
McPheters v. Page. 286, 717. 719.
McQueen y. Fulgham, 219, 220.
McRickard v. Flint, 920, 926.
Macrow v. Great Western R. Co..

1058.
McSloop V. Richmond & D. R. Co.,
1092.

McSorley v. Faulkner, 20.
McTavish V. Carroll, 693.
McVeety v. St. Paul, M. & M. R. Co..

191, 195. 1081.
McVeigh V. United States, 167.
McWilliams v. Morgan, 693.
Macy V. St. Paul & D. R. Co., 1045.
Madden v. Missouri Pac. R. Co., 944.
V. Port Royal & W. O. Ry. Co.,
1093.
Madison v. Pennsylvania R. Co., 624.
Madras Ry. v. Zemindar, 91. 834, 835,

844, 8(56, 867.
Madson v. Alderson, 583.
Maenner v. Carroll, 891.
Maesk V. Smith, 545.
Magee v. Railway Co., 966.
Maggl V. Cutts, 857.
Magnay v. Burt, 607.
Magner v. Truesdale, 883, 884.
Magnin v. Dinsmore, 300, 309.
Magor V. Chadwick, 759.
Maguinay v. Saudek, 454.
Maguire v. Hughes, 124.

V. Middlesex Ry. Co., 192.
Mahaffey v. Byers, 617, 627.
Mahan v. Brown, 56, 045, 750, 773,

779.

1188

CASES CITED.

[Vol. 1 comprisoH pages l-<ir>2, incliiRire; vol. 2 the residue.]

Mahan v. Clee. 1027.

Ma her v. Ashuiead, 4 IS, 605.

V. Winona & St. P. R. Co.. 375.
Malion V. Burns, 229.
Mahoney v. Dore, 201, 1024, 1025.
V. LIbboy, 840.

V. New York Cent. & H. R. R.
Co.. 1010.
Mahurln v. Harding, 559, 562.
Maier v. Randolph, 252.
Main V. Main, 463.
Mains y. Manhattan Real Batate

Ass'n, 654. 835.
Maitland t. Goldney, 548.
Majestic, The, 308, 1079.
Malachy v. Soper, 550, 554*
Malcolmson v. Scott, 428.
Malcom v. Spoor, 632.
Maleverer v. Spinke, 149.
Mall V. I^rd, 251, 2(a, 278.
Malinlemi y. Gronlund, 429.
Mallach y. Ridley, 258, 263.
Mallalleu v. Laugher, 706, 722, 723.
Mallet y. Uncle Sam Co., 91.
Mallory y. Cowart, 716.
y. Ferguson, 133.
V. Hanauer Oil Works, 32.
y. Pioneer Press Co., 499, 535.
Malloy y. Railway Co., 185.
Malone y. Haweley, 1003.
V. Knowlton, 855.
y. Marriott, 704.
y. Railway Co., 389, 1055.
y. Stewart, 495.
Maloney y. Trayerse, 785.
Malsky y. Schumacker, 324.
Maltbie y. Bolting, 234.
Managers of the Metropolitan Asy*

lum Dist. y. Hill, 140, 789, 790.
Manby y. Scott, 104.

y. Witt. 544.
Manchester S. & L. R. Co. y. Brown,

300, 305.
Maness v. Henry, 311, 313.
Maney y. Chicago, B. & Q. R. Co.,

925.
Mangam y. Brooklyn R, Co., 985.

y. Peck. 220.
Mangan v. Atterton, 160, 872, 977, 984.
Mangel y, O'Neill, 400.
Manger v. Shipman, 854.
Manget y. O'Niell, 494.

Manhattan Life Ins. Co. v. Fony-
Second St. & G. St F. R. Co., IT J
Manley v. Field. 451.

y. St. Helen's Canal Co., 1S«;.
Manloye v. Vick. 607.
Mann y. Barrett. 4.52.

y. City of Rich Hill. 469. 472.

y. Stock- Yard Co., 874, 883.

y. WIeand. 332.
Mann Boudoir Car Co. v. Dupre, 72.
Manning y. Brown, 688.

V. Clement, 525.

y. Johnson. 164.

y. Mitchell, 418.

y. Monaghan, 704.

y. Shriver, 714.

y. State of Nicaragua. 114.
Mantel y. Chicago, M. & St. P. R. C'..

945.
Manufacturers' Accident Indeuinity

Co. y. Dorgan, 947.
Manyell v. Thomson, 454, 4AS.
Man well v. Burlington, C. R. & N-

Ry. Co., 928,
Manzoni y. Douglas, 880.
Mapstrick v. Ramge, 646.
Marble y. Chapin, 479.
Marbourg y. Smith, 009.
Marceau y. Trayelers' Ins. Co., 32.'».
March y. W^alker, 439.
Marcy v. Fries, 779.

y. Howard, 6(57.

y. Merchants* Mut. Ins. Co., 78.
Marentille y. Oliyer, 435.
Marflll V. South Wales Ry. Co.. 882.

935.
Margetson y. Wright, 588.
Marguet y. La Duke. 854.
Maria, The, Case of, 231.
Marie, The, 114.
Marine Bank v. Ruslimore, 285.
Marine Ins. Co. y. St. Louis. I. M. A:

S, Ry. Co., 783.
Marion y. Railroad Co., 255, 275.
Marion County Com'rs y. Riggs, 1!^"].
Marion St. R. Co. y. SJiaffer, 964.
Mark y. Hastings, 615, 623.

y. Hyatt, 607.
Markel y. Moudy, 582.
Mark bam y. Jaudon, 741.
Markley y. Whitman, 202.
Marks y. Baker, 513, 530, 535, 541, 547.

CASKS CITED.

iicsy

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Marks v. Hastings, 292.

V. Jaffa, 356.

V. Rochester Ry. Co., 91>2.

V. Sullivan, 119, 426, 669.

V. Townsend, 425, 618. a^l.

V. Wright, 716, 731.
Mark's Adm'r v. Railroad Co., 8S3.
Marlowe v. Rogers, 7^3, 738.
Marlsbary v. State, 444.
Marpesia, The, 860.
Marr v. W. U. Tel. Co., 93S.
Mars V. Delaware & H. Canal Co., 266.
Marsan v. French, 777, 7!H5.
Marsh v. Benton Co., 819.

V. Billings, 551.

r. Colby, 659.

V. Ellsworth, 526, 52a

V. Falker, 563, 579.

V. Hand, 663, STm,

V. Herman, 1046.

V. Loader, 427.

V. McNlder, 755.

v. Whitmore, 916.
^larshall y. Betner, 605.

T. Blackshlre, 153.

V. Gilman, 323.

V. Heller, 421.

V. Oakes, 221, 222.

V. Peters, 753.

V. Railroad Co.. 3;W, 899. 1069.

V. Schricker, 3(k5.

V. Welwood, 847, 850, 908.

V. Widdicomb Furniture Co., 996.
Mai*shalsea Case. 123.
Marston v. Bigelow, 315.
Martin, Ex parte, 803.

V. City of Brooklyn, 130.

V. Deetz. 379.

V. Gilham, 697.

V. Hill, 564.

V. Hillen, 731.

V. Houghton, (>8l,

V. Jordan, 594.

V. Kennedy, 213.

V. Marshall, 124.

V. Martin, 12.

V. Payne, 451-454.

V. Pittman, 669.

V. Railroad Co.. 63, 72, 144. 314.
362, 844, 845, 847, 1032, 1048.

V, Rector, 670.

T. Richards. 263.

Martin v. Robson. 220.

V. Temperly, 231.

V. Towle, 949.

V. Wallace, 190.

V. Western Union Tel. Co.. 335.

V. Wood, 462.

V. Wrought Iron Range Co., 995.
Martinez v. Gerber. 450.
Martinowsky v. City of Hannibal, 797.
Marts V. State, 434.
Mai-vin V. Brewster Iron Min. Co., 753.

V. Railroad Co., 72.
Man-in Safe Co. v. Ward, 906.
Marx V. Press Pub. Co., 520, 525.
Mary, The, 150.

Maiy Lee Coal & Ry. Co. v. Cham-
bliss, 993.
Mary's Case, 84, 385.
Marzotti v. Williams. 26, 82, 83.
Mase V. Northern Pac. R. Co., 1044,

1045.
Maskoll V. Barker, 607.
Mason, In re, 115.

V. Chicago, St. P., M. & O. Ry. Co.,
890.

V. Ellsworth, 381

V. Ervlne, 875.

V. Keeling, 853. 854.

V. Lewis, 952.

y. Mason, 464, 525.

V. Missouri Pac. R. Co., 948.

V. Paynter, 79.

V. Richmond & D. R. Co., 1018.

V. Shawneetown, 920.

V. Spartanburg Co., 69.

V. Stratton, 495.

V. Union Pac. R. Co., 330.
Masson v. Bovet, 570.
Massoth V. Delaware & H. Canal Co..

926.
Massuere v. Dickens, 495.
Majsters v. Burgess, 543.
Masterson v. Mt. Vernon. 381.
Matchett v. Cincinnati. W. & M. Ry.

Co., 1016.
Mateer v. Missouri Pac. Ry. Co., 318.
Mathews v. Bliss, 590.

V. Central Pac. R. Co.. 470.

V. (\>wan, 165.

V. Densmore, 137.

V. London Street Tramwa3's Co.,
GS.

1190

CASES aTED.

LV<ii. 1 comprises pages 1-G52, inclusive; vol. 2 the residue.]

Mathews v. St. Louis & S. F. R. Co.,
846, 927.

V. Terry, 150.
Mathis V. Carpenter, 131.
Matlock V. Reppy, 21)5, 592.
Matteson v. Railroad Co., 377.

V. Strong. 9G2.
Matthews v. Charleston & S. Ry. Co.,
1079.

V. Philadelphia & R. R. R., 881.

V. Smith's Exp. Co., G70.

V. West London Water Works
Co., 186.
Mattice V. Wilcox, 506, 508, 537.
Mattimore v. City of Erie, 975, 978.
Mattise v. Consumers* Ice Manuf'g

Co., 234, 985, 1014.
Matts V. Borba, 511.
Maty V. Lord, 2r)5.
MatsB V. St. Paul City Ry. Co., 972,

1086, 1089.
Mau V. Morse. 963.
Mauerman v. St. Louis, I. M. & S. Ry.

Co., 462.
Maulsby v. Reifsnider, 526.
Maund y. Monmouthshire Canal Co.,

168.
Maunsell v. Hort, 408.
Maxey v, Missouri Pac. Ry. Co., 892,

929.
Maxfield v. Schwartz, 598, 599.
Maxmilian v. City of New York, 188.
Max Morris, The, 961, 979.
Maxwell v. Bay City Bridge Co., 684.

V. Palmerton, 153.

V. Pike, 134.
May V. Burdett, 59, 853, 854.

V. Jones, 477.

V. Newman, 353.

V. Smith, 1005.
Maye v. Yappen, 654.
Mayer v. Journeymen Stone Cutters'
Ass'n, 353, 643.

V. Kilpatrick, 731.

V. Thompson-Hutchison Bldg. Co.,
241, 243.

V. Walter, 607, 608, 612, 632-634.
Mjiyos V. Manning, 733.
Mayhew v. Boyce, 1083.

V. Burns, 679.

V. Herrick, 733.

V. Phoenix Ins. Co.. 581.

Maybew v. Suttle, 665.
Maynard v. Beardsley, 445.

V. Boston & M. R. Co., 195. 197.
V. Fireman's Ins. Co., 169.
Mayne v. Fletcher, 475.
Maynell v. Saltmarsh. 784.
Mayo V. Spartanburg, U. & C. R, C\» ,
673.
V. Springfield, 178, 666.
Mayor of Albany v. Cunliff, 18r».
Mayor of Cumberland v. Willlson.

177.
Mayor of London v. Cox. 136.
Mayor, etc., of Americus v. EldrldJie.

179.
Mayor, etc., of Baltimore v. Marriott.
747, 783, 961.
V. War. 999.
Mayor, etc., of Colchester v. Bro«li<\

676.
Mayor, etc., of Nashville v. Suther-
land, 176, 296.
Mayor, etc., of New York v. Bailey.
243.
V. Lord. 410.
Mayor, etc., of Rahway v. Cjirter, 170.
Mayrant v. Richardson, 507.
Maysville St. R, & T. Co. v. Marvin.
334.

Maysville & B. S. R. Co. v. Pelham.
672.

Mayton v. Texas & P. R. Co., 991.
Mead v. Bunn, 596, 597.
Meader v. Stone, 436, 665.
Meagher v. Cooperstown & C. V. R.
Co.. 989.

V. Driscoll, 371, 781.
Mears v. Dole, 840.
Mechanics' & Traders' Bank of Buf-
falo V. Farmers' & Mechanics' Nat.
Bank of Buffalo, 715.
Mechesney v. Unity Tp. Co.. 74. 77.
Medary v. Cathers, 225.
Medbury v. Watson, 579, 585.
Medford v. Levy, 807.
Meegan v. McKay, 855.
Meehan v. Edwards, 667, 672.

V. Morewood, 2(J3.
Meek v. Pennsylvania Ry. Co., 919,

926.
Meeks v. Railroad Co., 198, 984.

V. Willard, 672.

CASES CITKD, 1191

[Vol. 1 comprises iwges l-6o2, inelu«rive; vol. 2 the residue.]

Meese v. City of Fond du Lac, 472.
Mehrhof Bros. Brick Manufp Co. v.

Delaware, L. & W. R. Co., 708.
Mehroff v. Mehroff, 468.
Meier v. Morgan, 839.

V. Shrunk, 855, 857.
Meigs V. Lister, 769, 776, 778.
Meiners v. Frederick Miller Brewing

Co., 336, 793, 803.
Meir v. Pennsylvania R. Co., 1089.
Meiscb V. Rochester Electric R. Co.,

861.
Meister v. Lang. 746.
Melxell V. Kirkpatrick, 741.

V. Morgan, liV2.
Meka v. Brown, 317.
Mell V. Bamer, 617.
Mellen v. Morrill, 765.
Meller v. Missouri Fac. Ry. Co., 1080.
Mellor V. Baddeley, 618.

V. Leather, 655.

V. Merchants' Manuf g Co., 1022.

V. Railroad Co., 244, 389, 1080.

V. Spateman, 82, 84.
Mellors v. Shaws, 1023.
Mellquist v. The Wasco, 1081.
Mellwitz y. Manhattan Ry. Co., 389.
Melrose v. Cutter, 354.
Melsheimer v. Sullivan, 856.
Melville v. Gary, 600.
Melvin V. Chancy, 604.
Membery v. Great Western Ry. Co.,

201.
Memphis Bell Tel. Co. v. Hunt, 143,

863.
Memphis & C. R. Co. v. Davis, 926.

V. Graham, 1019.

v. Reeves, 65.

V. WhitfleUl, 377.
Memphis & O. R. Co. v. Hicks, 143,

144.
Mendenhall v. Klinck, 682.
Meneely v. Meneely, 147.
Menger v. Lauer, 823, 878, 968.
Menham v. Edmonson, 44.
Mennle v. Blake, 352, 655. (M)2, 734.
Mentel v. Hippely, 612, 622.
Mercer v. Corbin, 33, 432. 438, 813.
859. 877.

V. Walmsley, 452.
Merchants' Bank v. State Bank, 171.

Merchants' Cotton Press & Storage
Co. V. Insurance Co. of North Amer-
ica, 193.
Merchants' Dispatch Transp. Co. v.

Furl lima nn, 300.
Merchants' Nat. Bank v. National

Bank of the Commonwealth, 21.
Merchants' & Planters' Bank v. Mey-
er, 715. 734.
Mercler v. Mercier, 951.
Meredith v. Kee<l, 817-819.

V. Woodward, 915.
Mergenthaler v. Kirby, lO.'i.
Merguire v. O'Donnell. 58(i. 602.
Merivale v. Carson, 537.
Meriwether v. Asbeck, 600.
Merkle v. Bennington Tp., 333.
Merriam v. Cunningham, 164.

V. Hartford & N. H. R. Co., 106U.
V. Texas Slftlngs Pub. Co., 35<).
Merrick v. Hill, 325.
Merrill v. Central Vt. R. Co., 1035.
V. Eastern R. Co., 942.
V. Pepperdino, KUi.
V. St. Ix)Ui8, 220.
Merrltt v. Earle, 903, 10<J2, 1063.
V. McNally, 136.

V. New York, N. H. & H. R. Co.,
964.
Merry v. Green, 100.
Merryman v. Chicago R. I. & P. Ry.

Co., 987.
Merryweather v. Nixam, 32, 213.
Mersey Docks & Hai'bonr Board Co.

V. Gibbs, 174, 185, 186.
Mershon v. Hobensack, 902, 1062.
Mertz V. Detweller, 948.
Meservey v. Lockett, 879.
Messer v. Smyth, 594.
M(»ssick V. Midland R. Co., 685.
Metallic Compression Casting Co. v.

Fitchburg R. Co.. 149.
Metcalf V. Baker, 406.

V. City of Watertown, 336.
V. State, 444.
V. Williams, 47.
Metcalfe v. Cunard Steamship Co.,

S97.
Metropoliton Ass'n v. Fetch, 794.
Metropolitan Asylum Dist v. Hill.
150, 844.

1192 CASf:S CITED.

[Vol. 1 compruiOB pages 1-G52| inclusiye; vol. 2 the residae.]

MetropoUtau Board of Works v. Mc-
Carthy. 78<J.
Metropolitan U. Co. v. Jackson, 957.
Metroi)olitan St. It. Co. v. Johnson,
:i<>2, 470, 472, SSI. 029.

V. Powell, 982.
Meuer v. Chicago, M. & St. P. Ry. Co.,

1079, 1080.
Meux V. Cobley, 097.
Mowhirter v. Hatten, 409, 470, 472.
Mexican Cent. R. Co. v. Ijaurlcella,

1085, 1090.
Mexican Nat. R. Co. v. Cruni, 895.

V. Finch, lo:^:?.

V. Mussette, 930.
Meyer v. King, '^i, 987.

V. Orynskl, 738.

V. Railroad Co., 3<J3, 910, 10J)1,
1092.
Meyerlngh v. Wendt, 200.
Meyers v. Lobanon Mut. Ins. Co., 270.
MejTose v. Adams, 551, 553.
Michael v. Alestree, 249, 877.

V. Roanoke Mach. Works, 1003,
1025.
MlchaeUs v. Mlchaells, 393.
Michaels v. New York Cent. R. Co.,

r»5, 1002.
Mlchaels<m v. Denison, 150.
Michalke v. (Jalvestou, H. & S. A. Ry.

Co., 403.
^tichaud V. Kisonnicuger, 591, 593.
Michel V. Dunkle, 405.
Mlchelson v. I-avln, 505.
Michigan v. Ward, KXKl.
Michigan Cent. R. Co. v. Burrows,
820. 1009.

V. Coloman, 40S, 470, 819, 948.

V. Dolan, 820.

V. Dunham, 317.

V. Gilbert, 944.

V. Myrlck, 1074.

V. Smlthson, 995, 1002.
Michigan Mut. Llfi* Ins. Co. v. Cronk,

0.").5.
Middlesex Co. v. McCuo. 740, 7()8.
Middlestadt v. ^Morrison, 878.
Middleton v. Fowler, 2.jO, 253.

V. Pritchard, 75;J.
Mldford V. Ilardison. COS.
Midland Ins. Co. v. Smith, 557.
Midland R. Co. v, Fisher, 899.

Mielenz v. Quasdorf. 479, 480.
Mletzsoh V. Berkhout. 307.
Mllard v. Hoblck, 104.
Milbturne v. Byrne, 449.
Miles V. Bradford, 351.

V. City of Worcester, 177, 746, 798.
839.

V. Harrington, 493.

V. Van Horn, 511.

V. Weston, 029.
Mllford V. Commonwealth, 20.
Mill V. Hawker, 173.
Millar v. Thompson, 454.
Millard v. McDonald Lumber Co., 71fi.

V. Truax, 446.
Mill(?r V. Baker, 661, 717.

V. Barber, 583.

V. Blue, 777, 786.

V. Brooks, 522.

V. Brown, 608, 621.

V. Burket, 692.

V. Butler, 481, 491.

V. Covert, 404.

V. Curtlss, 575.

V. David, 50<J.

V. Grlce. 430.

V. Highland Ditch Co., 212.

V. Holland, 667.

V. Ilolsteine, 488.

V. Hope, 527.

V. Horton, 858,

V. Hyde, 721.

V. Lamery, 191, 732.

V. Lynch, 353, 357. 091. 692.

V. McDonald, 523.

V. Martin, ^3.

V. Mutzabaugh. 660.

V. North Fredericksburgh, 336.

V. Parish, 503.

V. Railroad Co., 72, 224, 237. 2.U
314, 335. 684. 844. 8S4. 9iJ9.
947, 1039, 1072, 1080.

V. Sawbridge, 599.

V. Staples, 246, 291.

V. Sweitzer, 221, 222.

V. Thompson, 717.

V. United States, 167.

V. Waddingham, 698. 704, 7a">.
Miller Piano Co. v. Parker, 724.
Millers Case, 509, 963.
.Millhouse v. Railway Co., 921,
Milligan, Ex parte, 56.

CASES CITED.

1193

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Milligan v. Wedge, 231, 238.
MiUiken y. Barrow, 167.

V. Hathaway, 734.
Mills V. Ball, 710.

V. Brltton, 725.

V. Brooklyn, 179, 180.

V. Graham, 159, 1G3.

V. Hall, 792.

V. Mills, 603.

V. New York & H. R. Co., 708.

V. United States, 18.
Millsaps T. Louisville, N. O. & T. Uy.

CJo., 1035.
Milner v. Milner, 667.
Miltenberger v. Railway Co., 207.
Milwaukee Ry. Co. v. Arms, 817, 822.
Milwaukee St. Ry. Co. v. Adlam, 144.
Milwaukee & C. R. Co. v. Kellogg, 77,

374, 944.
Milwaukee & M. R. Co. v. Finney,

397.
Milwaukee & St. P. Ry. Co. v. Arms,
817.

V. Kellogg, 71, 77. 78, 374, 944.
Mims V. Mt. Hermon Boys' School,

171.
Minaghan v. State, 440.
Minard v. Meade, 129.
Miner v. Connecticut R. R. Co., 870.

T. Gilmour, 755.
Ming V. Woolfolk, 589, 592.
Minister v. Citizens' Ry. Co., 983.
Minke v. Hofeman, 805.
Minneapolis Mill Co. v. Minneapolis &

St. L. Ry. Co., 686.
Mlnock V. Detroit, G. H. & M. Ry.

Co., 1091.
Minor v. Wright, 760.
Minors v. liceford, 502.
Minter y. Swain, 86.
Mires V. Solebay, 718.
Mlrkil V. Morgan, 798, 805, 806.
Mississinewa Min. Co. y. Patto^i, SoO.
Mississippi Hojiie Ins. Co. v. liOiiis-

vllle. N. O. & T. R. Co., 144. 845.
Mississippi Mills v. Meyer, 719.
Mississippi & M. R. Co. y. Ward. 804.
Mississippi & T. R. Co. y. Archibald,

754.
Missouri, K. & T. R. Co. y. Fuluiure,
667.

y. Miller, 1082.

Missouri, K. & T. R. Co. y. Palmer.
861.

V. Reynolds, 363.

V. Walker, 1008.

y. Woods, 958, 1012.
Missouri L. & M. .Co. y. Zeltinger, 672.
Missouri Pac. R. Co. y. Barnes, 306.

y. Baxter, 996.

y. Behee. 540, 544.

V. Brazzll. 311.

V. Breeding, 1072.

V. Cullers, 63.

y. Edwards, 1076.

V. Fagan, 1076.

V. Hackett, 881.

V. Haley, 1055.

V. Heldcnheimer, 727.

V. Hennessey, 949.

V. International Marine Ins. Co.,
301.

V. McElyea, 1013.

V. McFadden, 1066.

V. Mackey, 1055.

V. Moseley, 68, 953, 958, 971, 976.

V. Peay, 401.

y. Richmond, 544.

V. Russell, 1069.

V. Texas Pac. Ry. Co., 982.

V. Texas & P. Ry. Co., 206.

y. Tri'lss, 1073.
Mitchell V. Bradstreet Co., 387, 500,
506, 531, 541.

V. Brldger, 669.

y. City of Rome. 366.

y. Corbin, 132, 133.

V. Crassweller, 256, 278, 1009.

V. Darley Main Colliery Ca, 105,
335. 338. 339, 405, 411.

V. Dayies, 362, 629.

V. Donahey, 270.

\. Foster, 123.

V. Harmony, 111, 205.

V. Jenkins, 6(H, 615, 623, 625, 626.

V. Knott, 98.

V. Malone, 418, 426.

V. Marker, 902, 1084.

y. Mllholland, 493, 513.

V. Mining Co., 698.

V. Mitchell, 431, 681.

y. New York, L. E. & W. R. Co.,
195, 933.

y. Rochester Ry. Co., 72.

11U4

CASES CITED.

[Vol. 1 comprises pages 1-^2, iucluadye; vol. 2 the re«idae.]

Mitchell V. Kockland, 181, 185, 188.

V. Sharon, 504, 50i).

V. South Western R. Co., 608.

V. State, 432, 630.

V. Tttcoma Ry. & Motor Co., 872.

V. Tarbutt, 214.

V. United States, 112.

V. Wall, 625.

V. Western & A. R. Co., 1085.
Mix V. McCoy. 106.
Mixter v. Imperial Coal Co., 950.
M. Moxham, The, 102.
Mobile Ins. Co. v. Columbia & G. R.

Co., 846.
Mobile & B. Ry. Co. v. Holboru, 201.
Mobile & M. R. Co. v. Ashcraft, 907.

V. Jurey, 363, 1076.
Mobile & O. R. Co. v. George, 1017.

V. Godfrey, 936.

V. Hopkins, 301.

V. Massey, 1041.

y. Seals, 2&3.
Modisett V. McPike, 466, 467.
Moe V. Job, 842.

V. Smiley, 331.
Moebus y. Herrmann, 883.
Moeckley v. Chicago &. N. W. R. Co.,

928.
Moeller v. Brewster, 1020.
Moellering v. Eyans, 751.
Moens v. Heyworth, 572.
Moffat V. United States, 110.
Moffatt V. Fisher, 618.
Mogul Steamship Co. v. McGregor. 35,

146, 555, 641, 642, 646-649.
Mohney v. Cook, 194.
Mohr V. Gault, 66, 799.
Mohry v. Hoffman, 452.
Moline Plow Co. v. Webb, 336.
MoUie Gibson Consolidated Mining &

Milling Co. y. Sharp, 415, 1018.
Molloy V. Long Island R, Co., 617.
Molm V. Barton, 723.
Monaghan y. Cox, 023.
Monckton v. Pashley, 407.
Monell y. Colden, 85.
Money v. Lower View Coal Co., 863.
Monk V. Town of New Utrecht, 129,

165, 873.
Monks V. Monks, 509, 510.
Monmouth Min. & Manuf g Co. v. Erl-
• ing, 1037.

Monohan y. Triumph Artificial Limb

Co., 132.
Monongahela City y. Fischo:, 975.
Monroe y. Collins, 135.
Monson y. Madame Tussaud, 35G.
Montague y. Flockton, 358.
Montgomery y. Booming Co., 822, 825,
843.

T. Gilmer. 176.

V. Knox, 540.
Montgomery Co. Bank y. Albany City

Bank, 285.
Montgomery's Ex'rs y. Alabama G.

S. R. Co.. 895.
Montgomery & E. R. Co. y. Mallette,
379.

y. Stewart, 957.
Montreal Riyer Lumber Go. y. Mi-

hills, 564. 570.
Montriou y. Jeffreys, 915.
Moody y. Deutsch, 632. 634.

y. Hamilton Manuf'g Co., lOiL

y. McClelland, 751.

V. Steggles, 690.

y. Ward, 852.

V. Whitney, 740.
Moon V. Avery, 671.

y. Raphael, 385.

V. Wineman, 206.
Mooney y. Chase, 421.

y. Connecticut R. Lumber Go., 936,
1008.

y. Davis. 588.

y. Maynard, 677.

y. Miller. 580.

v. Trow Directory Prlntlni? &
Bookbinding Co.^ 879.
Moon's Adm'r v. Richmond & A. R.

Co., 1039.
Moore v. Adam, 380, 385.

V. Ames, 527.

v. Applet on, 216, 246, 1007.

y. Baker, 710.

V. Bradford, 914.

V. Browne, 796.

V. City of Minneapolis, 868.

y. Cross, 583.

y. Drayton, 825.

v. Durgin. 428.

v. Eastman. 163.

V. Ferrell, 691.

v. Floyd, 81.

CASES CITED.

iiyr>

[Vol. 1 comprises pages 1-G52, inclusive; vol. 2 the residue.)

Moore v. Francis, 507,

Y. Gadsden, 919, 926.

V. Haviland, 946.

V. Hill, 722. 737.

V. Jackson, 745.

V. King, 739.

V. Langdon, 796, 808. •

V. Lima Nat. Bank, 354.

V. Manufacturers* Nat. Bank, 528.

V. Mason, 005.

V. Metropolitan Nat. Bank, 269.

V. Railroad Co., 253. (.23, 627, 1028.

V. Robinson, ()65.

V. Sanborne, 255, 27S.

V. Smith, 603.

V. Steel Co.. 332.

V. Stevenson, 517.

T. Thompson, 418, 421, 427. 520.

V. WilUams, 337.
Moore, Lessee of, v. Doberty, 665.
Moores V. Union, 646.
Mootry v. Town of Danbury, 798.
Morain v. Devlin, 158.
Moran v. Dawes, 450.

V. Eastern Ry. Co., 1001.

V. Inhabitants of Town of Pal-
mer, 889.

V. Portland Steam Packet Co.,
715.

V. Smell, 56.
Morange v. Mix. 133.
Morasse y. Brochu, 505, 519.
Morbach v. Home Min. Co., 1003,

1027.
Morch V. Raubltschok, 325.
Morehouse v. Northrop, 44.
Moreland v. Boston & P. R. R., 840.
Morely v. Dunbar, 40G.
Moreton v. Hardern. 210, 2<J2.
Moroy v. Fitzgerald, 678.

V. Miller, 582.

V. Morning Journal Ass'n, 483,
549.

V. Town of Newfane, 183.
Morford v. Woodwortli, 809.
Morgan v. Bliss, 55.

V. Bowes. 769, 848.

V. Carbon Hill Coal Co., 1047.

V. Chester, :U2.

V. City of Des Moines, 174.

V. Cox, .->0, 813, 852.

V. Curley, 3bU 3M2.

Morgan v. Dawes, 454.

V. Dudley, 135.

V. Durfee, 333.

V. Freemont Co., 60.

V. Gregg, 741.

y. Halberstadt, 498. 499.

y. Hughes, 610.

V. Iron Co.. 1001.

y. Lingen, 496« 507.

y. Railroad Co.. 402, 764. 1037.

y. Ross, 459.

y. Smith, 229, 242, 448, 1035.

V. Tener, 252. 285, 340.

y. Varlck, 661.
Morganstein y. Nejedlo. 439.
Morlarity v. Bartlett, 331.
Moriarty y. Ashwoith, 698, 705.
Morier y. St. Paul. M. & M. Ry. Co..

261.
Moris V. Moris. 593.
Morish y. Mountain, 707.
Morison's Case. 9.
Moritz y. Garnhart, 454.
Morland y. Atchinson, 582.
Morley v. Chase. 428.

y. Gaisford, 247.
Morning Journal Ass'n v. Rutherford,

396, 475. 518.
Morrill y. Madden, 500.

y. Moulton, 720.
Monis, The Max, 961, 979.
Morris y. Chicago, B. & Q. Ry. Co.,
975.

y. Eighth Aye. R. Co., 108l>.

y. Piatt, 53, 67. 151.

y. Robinson, 344.

y. Ryerson, 410. 411.

y. Strobel & Wllken Co.. 837.

y. Tuthlll, 645.
Morris Canal & Banking Co. y, Ryer-
son. 797.
Morris Co. y. Burgess, 851.
Mon'isey y. Hughes, 1052.
Morrison y. Belcher, 535.

V. Davis, 63, 375. 1062.

V. Kelly, 619.

V. Koch, 582, 584.

y. Lawrence, 180.

V. McDonald, 118.

V. Marquardt, 802.

V. Philips. 1074.

y. Press Pub. Co.. 54a

1196

CASES CITED.

[V(»l. 1 comprises pages 1-652, iriclusive; vol 2 the residue.]

Morrison's Case, 9.

Morrissey v. Chicago, B. & Q. R. Co..
148.

V. Eastern R. Co., 197.
Morris & E. R. Co. v. Newark Pass.
Ry. Co.^ 6^9.

V. Pnidden, 777, 794.
Morrow v. Railway Co., 72.
Morrow Shoe Manuf'g Co. v. New

England Shoe Co., 735.
Morse v. Borough of Fair Haven, 774.

V. Boston & L. R. Co., 921.

V. Crawford, 155. 731.

V. Minneapolis &. St. L. Ry. Co.,
949, 950.

V. Slue, 286. .

V. Town of Richmond, 766.
Mortin V. Shoppee, 431. 435, 43(J.
Mortland v. Philadelphia &^ R. Ry.

Co., 1078.
Morton v. Comptroller, 124.

V. Crane, 118.

V. Frankfort, 952.

V. Metropolitan Life Ins. Co., 169.

V. Solambo Copper Min. Co., 91.

V. Young, 618.
Mose T. Hastings & St. L. Gas Co.,

850.
Moseley v. ChamberUiln, 1030, 1043.
Moses T. Boston & M. R. Co., 1070.

V. Dubois, 420.

V. Johnson, 698. 701. 702.

V. Norris, 1057.

V. Port Townsend S. R. Co., 1075.

V. State, 771.
Mosher v. Southern Exp. Co., 1073.
Mosier v. Beale, 470, 471.

V. Caldwell, 759.

V. Stoll, 510.
Moss V. City Council of Augusta, 175.

V. City of St. Paul, 220.

V. Cummlngs, 128.

V. Manhattan R. Co.. 141.

V. Pacific R. Co., 10(K).
Mostyn v. Fabrigas, 103.
Mott V. Cherryvale Water & Manufg
Co., 919.

V. Comstock, 506.

V. Consumers* Ice Co., 278.

V. Ewlng, 755.

V. Schoolbred. 703.
Mouat Lumber Co. v. Wllmore, .S43.

Moulton y. Beecher, 611.

Y. Inhabitants of Sandford, 96S^

V. St. Paul, M. & M. Ry. Co.. 303,
1074.

V. San ford. 7fi.
Mount V. Derrick. 729.
Mt. Adamd & Eden P. Ry. Co. y. Do-

herty, 860.
Mouse's Case, 149, 150.
Mower v. Leicester, 184.
Mo wry v. Chase, 419.

V. Wood, 739, 743.
Moxham, The M., 1(12.
Moyer v. Moyer, 549.
Moynahan v. Wheeler, 663. 835.
Moynilian v. Allyn, 895.

V. Hills Co., 1008, imi.
M. P. K. Co. V. Barnes. 306.
Mucci V. Houghton, 913.
Muckle T. Rochester R. Co.. 396.
Mueller v. Fruen, 792.

V. Kuhn, 665, 666.
Muggridge v. Eveleth. 190.
Muhrs Adm*r v. Michigan Southern

R. Co., 334.
Muirhead v. Hannibal & St J. R. Co.,

995. 1011.
Mulber v. Old Colony Ry., 319.
Mulchey v. Methodist Religious Soc.,
895.

Muldoon V. Rickey, 608.

V. Seattle City Ry. Co., 296, 19S3.
Muldowney v. Illinois Cent R. C<»..

863.
Mulford V. Clewell, 468.
Mulgrave v. Ogden, 719, 726.
Mulhern v. Lehigh Valley Coal Co.,

999, 1045.
Mullen V. Brown, 630.

V. City of Owosso, 905, 983.

V. Old Colony Ry., 320.

V. Oregon, S. L. & if. N. Ry. Co..
1088.

V. St. John, 837, 839, 840, 939.

V. Strieker, 750.
Muller V. Dell, 337.

V. McKesson, 857.
Mullett V. Mason, 586, 858.
Mulligan v. Cole, 509.

V. New York & R. B. Ry. Co., 258,
279.
Mullin V. Northern Mill Co., 992.

CASES CITED.

1197

[Vol. 1 comprises pages l-()52, iiicluidrc; vol 2 the residue.]

Mullin y. Spangenberg, 260.

MuUiner v. Florence, 738.

Mulvehall v. Millward, 452-454.

Mulvehlll V. Bates, 278.

Mumby v. liuwden. 227.

Mumfdrd v. Oxford, W. & W. Ky. Co.,

7W.
Muncie Pulp Co. v. Jones, ^97.
Muncie St. Ky. Co. v. Maynard, 882.
Manger v. City of Waterloo, yr>0.

V. Hess, 105, 718.
Munnerlyn v. Augusta Say. Bank, 337.
Munns v. Dupont, 626.
Munos y. Southern Pac. Co., 336.
Munro y. Pacific Coast Dredging &

Reclamation Co., 332, 848.
Munroe y. Luke, 668.

y. Stlckney. 82, 366, 779.
Munster y. Lamb, 526, 527.
Murdock y. Walker, 73, 978.
Murdock Parlor-Grate Co. y. Com-
monwealth, 20, 110, 112.
Murgatroyd y. Robinson, 792.
Muriel y. Tracey, 603.
Murphey y. City of Wilmington, 764.

V. Wabash R. Co., 869.
Murphy v. Deane, 973.

y. Fond du Lac, 6b2.

y. Hays, 937.

y. Hobbs, 395.

y. KPon, 425, 427.

V. Lincoln, 691, 602.

V. Lowell, 840.

V. Martin, 425, 605, 630.

y. Nelson, 507, 527.

V. New York, etc., Ry. Co., 394.

y. Redler, 028.

V. Smith, 1036.

V. Wabash R. Co., 869, 993.

V. Walters, 423.
Murray y. Currle, 1034, 1036.

y. Friensberg, 418. 429.

y. Gast Lithographic & Engraying
Co., 356, 461.

y. Hall, 668.

y. Hay, 794.

y. Mace,. 633, 063, 603.

V. McGarigle, 650.

y. McShane, 768.

y. Man, 562.

y. Railroad Co., 185, 1029.
Murrey y. Kelso, 614.

Murry v. Young, 856, 857.
Murtaugh y. St. Louis, 188.
Muscatine W. R. y. Horton, 118.
Musch y. Burkhart, 800.
Muschamp y. X^ancaster & P. J. Ry.

Co., 1071.
Musgroye y. Newell, 615, 623.
Muskegon Booming Co. y. Hendricks,

709.
Mustard y. Wohlford, 164.
Mutrie y. Binney, 102.
Mutual Life Ins. Co. y. Bigler, 353.
Myer y. Amidon, 563.

y. King, 385.
Myers y. Center, 340.

y. Dean, 860.

y. Hudson Iron Co., 1008.

y. Malcolm, 847.

y. Parker, 854.

y. San Francisco^ 397.
Mynard v. Syracuse, B. & N. Y. R.

Co., 309.
Myrick v. Michigan Cent. R. Co., 1047.
Myron y. Union R. Co., 314.

N

Nachtman y. Hammer, 616, 620.
Nagle y. Missouri Pac. R. Co., 830.

y. Nicholson, 694.
Nail y. LouisyiUe, N. A. &, C. Ry. Co.,

1024.
Nalley y. Hartford Carpet Co., 049.
Xaser y. First Nat Bank, 285.
Nash y. Jewett, 164.
y. Lucus, 675, 677.
y. Minnesota Title Ins. & Trust

Co., 578.
y. Sullivan, 700.
y. Trust Co., 560, 680, 586.
y. Whitney, 135.
Nashua Iron & Steel Co. y. Worcester

& N. R. Co., 216, 973, 975, 977.
Nashua Lock Co. y. Worcester & N.

Ry. Co., 1072.
Nashville & C. R. Co. v. Can-oil, 1042.

V. Starnes, 265, 307.
Nashville & C. R. R. Co. y. David,

1062.
National Bank v. Graham, 171.
y. Sprague, 472L

1198

CASEB CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the resitltie.]

Xational Docks & N. J. J. C. Uy. Co.

V. Pennsylvania R. Co., 355.
National Endowment Co., In re. tC>l).
Xational Exch. Bank v. Beal, 2S5.
Xational Excliauge Co. v. Drew, 101),

245.
National Life Ins. Co. v. Mincb. 44.
Xational Syrup Co. v. Carlson. 318.
XaUonal Tel. Co. v. Baker, 804.
Xational Transit Co. v. Weston, 700.
Xational Trust Co. v. Gleason, 41.
Xatoma Water & Mining Co. v. Clark-

in, 691.
Xauman's Appeal, 221.
Xaumberg v. Young, 227.
Xavasota v. Pearce, 184.
Xave V. Alabama G. S. R. Co., 197,
942.

V. Flack, 195.
Xeaffie, The, 1057.
Xeal V. Glllett, 977.

V. Joyner, 428.

V. Northern Pac. R. Co., 1042,
1049.
Xealand v. Boston & M. R. R., 1078.
Xeall V. Gillett, 161.

V. Hart, 418.
Xealon v. Frisbie, 495.
Xeanow v. Uttech, 193.
Xebenzahl v. Townsend, 418, (VM), 0.{1.
Xeeb V. Hope, 515.
Xeedham v. King, 843.
Xeel V. Neel, 706.
Xeff y. Inhabitants of Wellesley, 170.

V. Landis, 163.

V. New York Cent & H. R. R.
Co., 928.

V. Paddock, 765.
Xegley v. CoweU, 65>4.

V. Farrow, 537.
Xegus V. Becker, 235.
Nehr v. State, 768, 857.
Neil V. Fords, 531.
Xeller v. Kelly, 741, 743.
Xeimitz v. Conrad, 42:5, 426.
Xelson V. Danielson, 007.

V. Duluth, S. S. & A. Ry. Co., 884.

V. Galveston, H. & S. A. Ry. Co..
324, 334.

V. Ivorson, 736.

V. Liverpool Brewery Co., 225,
229.

Nelson v. Luliug. 592.
V. Merriam, 718.
V. Milligan, 807.
V. Musgrave. 524.
V. St Louis & 8. F. Ry. Co., 921.
V. State, 914.
V. Stocker, 165.
V. Wallace, 486, 547.
V. Woodruff, 1061.
Nesbit V. St. Paul Lumber Co., 740.

V. Town of Garner, 983.
Xostelle V. Northern Pac. Co., 336.
Xetlierland-American Steam Nav. Co.

V. Hollander, 363. 461.
Nettles V. Somervell, 505, 506, 52:5.
Nettleton v. Sikes, 684, 6S5.
Netzer v. City of Crookston, 17G.
Xeubauer v. Northern Pac. R. Co.,

945.
Neufeld v. Rodeminski, 617.
Neumeister v. Dubuque, 472.
Neutz V. .luckson Hill Coal & Coke

Co., 1045.
Nevada Bank v. Portland Nat. Bank.

172, 579, 580.
Nevada Bank of San Francisco v.

Poitland Nat. Bank, 587.
Neveu v. Sears, 265.
Novin V. Pullman Palace Car Co., 90:5.
Novltt V. Gillespie, 705.
New Albany Forge & Rolling Mill v.

Cooper, 228.
New Albany R. Co. v. Peterson. 758.
Newall V. Jenkins, 639.
Newark Aqueduct Board v. City of

Passaic, 81, 795, 806.
Newark Coal Co. v. Upson, 607, OOS.
Oil.

Newark Pass. Ry. Co. v. Block, aj5.

Newbern Gaslight Co. v. Lewis Mt*r-
cer Const Co., 353.

Newbold v, Bradstreet, 500.

New Brunswick Ry, Co. v. Cony-
befiire, 558, 584.

Xewhy v. Gunn, 428.

Newcomb v. Boston Protective De-
partment, 04, 77, 102, 145, 193, 925.

Neweomen v, Coulson, 688.

NewdoU V. Young, 831.

Newell V. Chapman, 600, 602.
V. City of New York, 317.
y. Cowan, IL

GA8EB CITED.

1199

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Newell V. How, 506.
V. Whitcher, 436.
New England Manuf g Co. y. Starn,

1006.
Newhall v. Kingsbury, 714.
Newhard v. Pennsylvania R. Co., 826,

928.
New Haven v. Sargent, 690.
New Holland Turnpike Co. v. Farm-
ers* Ins. Co., 336.
New Jersey Express Co. v. Nichols,

381, 406.
New Jersey R. Co. v. Pollard, 967,

10H4.
New Jersey Steam Xav. Co. v. Mer-
chants' Bank, 1067.
New Jersey & N. Y. R. Co. v. Young,

1026.
Newkirk v. Dal ton, 12.

v. Sabler, 676.
Newman v. Davis, 613.

V. Earl of Hardwicke, 122.

V. Railway Co., 85, 333, 429, 984,

986, 987.
V. Stuckey, 212.
New Orleans Gas Light Co. v. £x)uis-
lana Light & Heat Producing &
Manurg Co., 775.
New Orleans, J. & G. N. R. Co. v. AU-
britton, 1084.
V. Harrison, 991.
V. Hurst, 19, 903, 904.
New Orleans M. & C. R. Co. v. Han-

ning, 229, 895.
New Orleans Ry. v. Hiu^t. 396.
New Orleans, St. I^. & C. R. Co. v.
Bourke, 262.
V. Burke, 395.
New Orleans & C. R. Co. v. Schnei-
der, 400, 964, 1080, 1090.
New Orleans & N. E. R. Co. v. Jopes,
1091.
V. Thomas, 1080.
New Pittsburgh Coal & Coke Co. v. i
Peterson, 1041, 1043. |

Newport News & M. V. Co. v. Ilnwe, '
197, 975, 1031.
v. United States. 1075.
Newport News & M. V. R. Co. v.
Campbell, 1019.
V. Dentzers Adm*r, 824, 103t).
New River Co. v. Johnson, 758, 791

Newson v. Anderson, 061.
V. Pender. 781.
V. Railroad Co., 971.
Newton v. Central Vermont R. Co..
1090.
V. Harland. 688.
V. Locklin, 428.
New World, The, v. King, 813, 1084.
New York Catholic Protectory, Mat-
ter of. 689.
New York Cent. R. Co. v. Lockwood.

818.
New York Cent & H. R. R. Co. v.
City of Rochester, 176. 764, 795, 807.
New York, C. & St. L. R. Co. v.
Mushrush, 893, 942.
V. Zumbaugh, 928.
New York El. R. Co. v. Fifth Nat.

Bank, 791.
New York Filter Co. v. Sehwarzwald-

ef. 357.
New York Guaranty Co. v. G lesson.

41.
New York. L. E. & W. R. Co. v.
Bennett, 202, 1079.
V. Estill, 3a3, 378, 1076.
V. Leaman. 923.
V. Madison, 941.
V. Steinbrenner, 983.
V. Winter's Adm'rs, 1079.
New York Lighterage & Transp. Co.

V. Pennsylvania R. Co.. 64.
New York P. & D. Establishment v.

Fitch, 692.
New York Rubber Co. v. Rothery,

756.
New York & B. Sawmill & Lumber

Co. V. City of Brooklyn, 181.
New York & C. Ry. Co. v. Schuyler,

171.
New York & M. L. R. Co. v. Winans,

237.
New York & N. E. R. Co. v. Hyde.

1039.
New York & N. H. R. Co. v. Schuy-
ler, 169.
New York & N. J. Tel. Co. v. East

Orange. 863.
New York & N. Steamboat Co. v. The

Transfer No. 4, 15. 1044.
New York & T. Land Co. v. Gardner,
673.

1200

CASES CITED*

[Vol. 1 comprises pages 1-C52, inclusiye; vol. 2 the residue.]

New York & T. S. S. CJo. v. Anderson,

1023.
New York & W. P. Tel. Co. v. Dry-
burg. 287. 304, 900, 910.
Ney V. Mumine, 733.
Xlchall V. Allen, 185.
Nichol V. Martyn, 450.
Nicholas v. New York Cent. Uy. (\)..

309.
Nlcholds V. Crystal Plate-Glass Co.,

401, 1015.
Nicholl V. Glennie, 213.
NichoUs V. Bastard, 712.
Nichols V. Boston, 797.

V. Chicago & W. M. Ry. Co., 1089.

V. City of Duluth, 752.

V. City of Minneapolis, 174.

V. City of St. Paul, 176.

T. Marsland, 836.

V. Newsoin, 717.

V. Nowling, 216.

V. Southern Pac. Co., 1079.

V. Winfrey, 333.
Nicholson v. Getchell, 802.

V. Mounsey, 138, 252.

V. Railroad Co., 4(H, 896.

V. RevlU, 345.
Nickerson v. Nickerson, 463.

V. Wheeler, 216.
Nicklase v. Morrison, 704, 740.
Nickleson v. Stryker, 452.
Nicklin V. Williams, 335.
Nlcol V. Illinois Cent. R. Co., 688.
Nicoll V. East Tennessee, V. & G. R.

Co.. 904.
Nield V. London & N. W. R. Co., 186.
Nieto V. Clark, 262.
Niggli T. Foehry, 311.
Nigh V. Keifer, 627.
Niles V. Edwards, 725.
Nims V. Mt. Hermon Boys* School,

47. 188.
Nisbet V. Patton, 732.
Nisley v. Harrisburg. P., Mt. J. & L.

R. Co., 689.
Nissen v. Cramer, 526.
Nitro-Glycerine Case, 53, 66, 437, 811.

867.
Nitro-Phosphate & O. C. M. Co. v.
London & St K. Docks Co., 70, 840,

OV±9

Nixon v. Selby Smelting I..ead iM..
1044. 1046.

T. Tynemouth Union Rural San-
itary Authority, 798.

V. Whitsett, 726.
Nobelsville Ry. Co. v. Gause, 20U.
Noble V. Adams, 728.

V, Manufacturing Co.. 3&J.

V. St. Joseph & B, H. St. Ry. Co.,
947. 1084.
Noel V. Kaiper, 157.
Noice V. Brown, 450.
Nolan V. Jones, 163.

V. Iklanton, 297.

V. Nolan, 221.
Nones v. Northouse, 406.
Noonan v. City of Albany, 176. TiU.
Norbury v. Kitcbin, 755.
Norcross v. Otis Bros., 56, S3. «J<iS,
633.

V. Thomas, 746.

V. Thorns, 745, 768.
Nordheimer v. Alexander, 839.
Norfolk & W. R. Co. v. Adams. l«Mrs.

V. Briggs, 1018.

V. Burge, 817.

V. Draper, 362.

V. Galliher, 242, 424, 1086.

V. Groseclose's Adm'r, 986.

V. Hoover, 869, 998, 1040.

V. McDonald's AdmY. 1022.

V. Phelps, 1053.

V. Thomas* Adm'r, 999, 1(»52.

V. Ward, 997.
Norling v. AUee, 828, 839.
Norrell v. Vogel, 621, 622.
Norrls v. Baker, 800.

V. Casel, 439.

V. CorkiU, 220.

V. Litchfield, 191, 192, 879.

V. Norris, 466.

V. Saxton. 878.
Morristown v. Moyer. 400, HW
North V. Sheam, 89.

V. Smith, 878.
Northam v. Bowden, 712, 715.
Northampton Co. v. Lafayette Col-
lege, 188.
Northampton's Case, 548.
North Baltimore Pass. To. Co. v.
Arnreich, 885.

.J

CASES CITED.

1201

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

North Baltimore Pass. Ry. Ck>. v. Kan

Kell, 1085.
North Birmingham St. R. Co. v. Cal-

derwood, 975.
North British Ins. Co. v. Lloyd, 576.
North Carolina v. Temple, 113.
North Chicago City Ry. Co. v. Gast-

ka, 2.58.

North Chicago RoUlng-Mill Co. y.

Johnson, 948, 978.
North Chicago St. R. Co. v. Cook, 1090.

T. Cotton, 384.

V. Eldridge, 9('>4.

V. Hudson, 950.

V. Williams, 1081.
Northcote v.' Smithy 677.
Northeastern R. Co. v. Barnett. 937.

V. Wanless, 573, 971.
Northern Belle, The. 1088.

V. Robson, 1089.
Northern Cent. R. Co. y. O'Connor,
1087.

V. State, 977.
Northern Pac. Coal Co. v. Richmond,

1022, 1025. 1033.
Northern Pac. R. Co. y. Austin, 884.

V. Babcock, 103.

V. Cayanaugh, 193, 1047.

V. Charless, 993. 1001. 1038.

V. Everett, 953. 1015.

y. Hambly, 1031, 1038, 1042. 1043,
1049, 1056.

V. Herbert, 200, 909, 1007, 1009.
1032, 1044.

V. Hussey. 354.

V. Lewis, 71, 670, 712, ^5. 926.

y. Mortenson, 954.

V. Nickels, 1001, 1019.

V. Peterson, 1041. 1046. 1047.

V. Smith, 1038.

V. Sulliyan, 925-927.

V. Teeter, 954.

V. Whalen, 744. 785, 794.
Northern Transp. Co. v. Chicago. 89
142. 143.

Northington v. Faber, 714.

North Pennsylvania B. Co. v. Kirk.

t\AA

i7M Xm

y. Mahoney, 213.

y. Rehman, 723, 854.
Northrop v. HIU, 340.
Northrop v. Foot, 190.

T.AW OF TORTS— 76

I Northrup v. Mc(4iU, 360.
! V. Trask, 723.

North Side St Ry. Co. y. Tipplns,
936.

Northwestern Fertilizing Co. v. Hyde

Park, 140.
Northwestern Fuel Co. v. Danielson,

1050, 1052, 1053.
Northwestern Mut. Life Ins. Co. y.

Elliott, 100.
Northwestern Transp. Co. y. Boston

Marine Ins. Co., 73, 77.
Nortin v. Warner, 401.
Norton V. Ittner, 8(>2.

V. Livingston, 499. 520.

V. Norton, 322, 324. 664,

V. Scholefleld, 768.

V. Sewall, 907.

V. Wiswell, 331.
Norwalk Gas Light Co. y. Borough

of Norwalk, 229, 232, 233. 235.
Norwood V. Raleigh & G. R. Co., 831,

871, 884, 886.
Notting HIU, The. 742.
Nounnan v. Sutter County Land Co,

592, 594.
Nourse v. Packard, 370.
Nowak V. Waller, 423.
Nowlan v. Cain, 569.
Noxon V. Hill, 124.
Noyes v. Belding, 132.

V. Boscawen, 083.

y. Smith, 870, 1015.

T. Stillman, 797.

V. Ward, 764.

V. Wood, 1040, 1046.
Nudd V. Wells, 1068.
Nugent V. Levee Com'rs, 126.

V. Smith, 66, 10U2.

V. Vanderveer, 333.
Null V. White Water Vallcv Canal

Co., 349.
Nunnelly v. Southern Iron Co., 173.
Nussbaum v. Heilbron, 286.
Nutt V. Southern Pac. R. Co., 946.

1010.
Nuttall V. Bracewell, 759.
Nutter V. RIcketts, 719.
Nutting V. Connecticut Ry. Co., 1072.
Nye V. Merrlam, 592, 593.

V. Railroad Co., 1087.
Nysewander v. Lowman, 898.

1202

CASES CITED.

[^'ol. 1 comprises pages 1-652, inclasiye; vol. 2 the residue.]

O

Oakefl V. Hill, 13r,.

V. Northern Vt\e. Ry. Co.. 1077.

V. Wood, 434.
Oakland City A. & I. Soc. v. Blngbam,

2r>:i, 274. 279.
Oakland U. Co. v. FieldluK, 185, 186.
(Jakley Mills v. Neese, 781.
(Jberfelder v. Kavauaugh, 707.
Oberlander v. Spiess, 563.
Obernatte v. Johnson, 621).
O'Boyle V. Lehigh Val. Coal Co., 1*09,

1045.
O'Brien v. Barry, 610.

V. City of St. Paul. 764.

V. Clement, 485. 521.

y. Cunard Steamship Co., 914.

V. Loomls, 825.
"v. Miller, 880.

V. People, 160.

T. Railway Co.. 320.

V. Rldeout, 1040.
O'Callaghan v. Bode. 85)4.
Oc-ean Grove v. Asbury Park, 758.
Ocean Grove C. M. Ass'n v. Commis-
sioners, 90.
Ocean Steamship Co. v. WilllamB, 418.
(Jchscenheim v. Simple^', 265.
O'Connell v. Reg., (tW.

V. St. Louis Cable & W. Ry. Co.,
1084.
O'Conner v. Illinois Cent. R. Co.. S']l.
O'Connor v. Andrews. 226, 839.

V. New York & Y. Land Imp. Co.,
399.

V. Sill, 501, 534.
Odd Fellows' Savings Bank v. Tur-

man, 664, 673.
Odell V. Railroad Co., 1017, 1051.

V. Schroeder, 174.
Odlorne v. Bacon, 496.

V. Lyford, 668.
Odlln V. Stetson, 911.
Odom V. Weathersbee. 733.
O'Donnell v. Allegheny Valley R. Co.,
994, 1089.

V. Duhith, S. S. & A. Ry. Co., 893.

V. Segar, 89.
O'Drlscoll V. Faxon, 869.
Oellerk'h v. Hayes, 994.
Ogden V. Claycomb, 195, 196.

Ogden V. Glbons, 398.

V. Turner, 502.
Ogg V. Lansing, 188.
Ogley V. Miles, 1022. 1023.
O'Hagan v. Dillon. 165.
0*Hare v. Jones, 167, 195.
Ohio Gas Fuel Co. v. Andrews, 186.
Ohio R. Co. V. Sims. 264.
Ohio Val. R. Co. v. Watson's Admr.

951, 1080.
Ohio & M. R. Co. V. Brown, 1087.

V, Dlckerson, 399.

V. Dunbar, 1075.

V. Dunn, 999.

V. Heaton, 1009.

V. Hecht, 72.

V. Hill. 362, 884.

V. McDaneld, 862.

v. Neutzel, 339.

V. Pearcy. 990, 1045.

V. Selby, 300.

V. Slmms, 893.

V. Stansberry, 1093.

V. Thillman, 412. 754.

V. Trapp, 067.

V. Wachter, 410. 791.

V. Yohe, 1066.
Ohio & M. R. W. Co., Y. GoUarn. 032.

933, 1009.
Ohlweller v. Lohmann, 935.
Oil V. Rowley, 677.
Oil City Fuel Supply Co, ▼. Boundy,

975.
O'Keefe v. Brownell, 104a

V. Chicago R. Co., 979.

V. Railroad, 962.
Old Colony R. Co. v. Slavens, 216.
Old Dominion S. S. Go. y. McKennA.

649.
Olds V. Chicago Board of Trade, 717.

729.
Olesen v. City of Plattsmouth, 194.
Olln V. Lockwood. 352.
O'Llnda v. Lothrop, 689.
Ollphant V. Brearley, 381.
Olive V. Van Patten, 646, 650,
Oliver V. Lavalle. 369.

V. liOftin. 800.

v. McClellan, 159.

V. Pate, 526.

V. Perkins, 24, 390.

V. Town, 72.

CASES CITED.

1203

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue]

Olmstead v. Doiand, 418.

V. Rich, 659.

Olsen V. llpsahl, 682.

Olson V. Chicago, M. & St. P. Ky. Co.,

880.

T. Neal, 618.

V. Orton, 598.

V. St. Paul, M. & M. Ry. Co., 1040.
V. St. Paul & D. R. Co., 1080.
V. Sharpless, 362.
y. Tvete, 608, 629.
Omaha Auction & Storage Co. ▼. Rog-
ers, 715, 717. 724.
Omaha Coal, Coke & Lime Co. y. Fay,

388.
Omaha St. Ry. Co. y. Cameron, 885.

y. Duvall, 861, 885.
Omaha & N. P. R. Co. y. Janecek, 141.
Omaha & R. V. Ry. Co. y. Brady, 828,
920, 955.
y. Cholette, 1084, 1093.
y. aark, 828.
y. Clarke, 828.
V. Morgan, 211, 872, 955.
V. MoBchel, 337.
y. Ryburn, 361.
O'Maley y. South Boston Gaslight Co.,

201, 1025.
O'Malley y. Dom, 879.

y. St. Paul, M. & M. Ry. Co., 830,
948.
O'Mellla y. Kansas City, St. J. & C.

B. R. Co., 1014.
Onderdonk y. New York & S. B. Ry.

Co., 1093.
O'Neal y. Chicago & I. C. R. Co., 1015,

1016.
O'Neil y. Detroit, 176.

y. Dry-Dock, E. B. & B. R. Co.,

861.
V. Diiluth, S. S. & A. Ry. Co., 892.
y. Tiake Superior Iron Co., 318.
y. Town of East Windsor, 879.
O'Neill V. Johnson. 379, 609.
Oneto y. Restano, 759.
Onslow y. Home, 488.
Opdyke y. Weed, 512.
Oppenheim y. Russell, 719.
Oppenheinier v. Manhattan Ry. Co.,
424, 018.
T. United States Exp. Co., 305.

Oppenlander y. Left-Hand Ditch Co.,

7.16.
Opsahl y. Judd, 194.
Orange y. Brown, 902.
Orchard Place Land Co. y. Brady, 754.
Orcutt y. Northern Pac. R. Co., 1080.
Ordway y. Ferrin, 680.
Oreamuno y. Uncle Sam Co., 91.
O'Regan y. Cunard S. S. Co., 1079.
Oregon Ry. Co. y. Oregon Ry. & Nay.

Co., 565.
Oregon Ry. & Nay. Co. y. Oregonian

Ry. Co., 237.
Oregon Short Line & U. N. Ry. Co. y.

Northern Pac. R. Co., 1067.
O'Reilly y. Shadle, 730.
Orman y. Mannix, 1024.
Orme y. Richmond, 176.
Ormrod y. Huth, 566. 587.
Ormsby y. Budd, 564.

y. Douglass, 541.

y. Union Pac. R. Co., 305.
Orndorff y. Adams Exp. Co., 303.
O'Rourke y. Chicago, B. & Q. Ry. Co..
975.

y. City of Sioux Falls, 173.
Orr V. Box, 131.

y. Garabold, 878.

y. Quhnby, 136.
Orsor y. Metropolitan Cross Town R.

Co., 363.
Orth y. St. Paul, M. & M. Ry. Co.,

937.
Orway y. Ferln, 128.
Osbom y. Chicago & N. W. R. Co.,
1067.

y. Francis, 453.

y. Potter, 708, 725, 726.

y. Veltch, 432, 434, 442.
Osborne v. Gillett, 327, 328, 449, 450.

y. Knox & L. R. Co., 991.

y. London & N. W. R. Co., 373.

y. McMasters, 100, 274, 333, 907,
924, 1013.

y. Morgan, 281, 290, 1037.
Osburn y. Loyell, 414.
Oscanyan y. Arms Co., 299.
Osgood y. Bradley, 135. .

y. Lewis, 559.
O'Shaugnessy y. Baxter, 136.

y. Morning Journal Ass'n, 494.

1204

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusire; vol. 2 the residue.!

O^Sbaugnessy v. -New York Recorder

Co., 404, 507.
O'Shea v. Klrker, 342.
Oskaloosa Collej^e v. Western Union

Fuel Co., 693.
()8tatag V. Taylor, 088.
Osten V. Jerome, 762.
Ostrom Y. Calkins, 506.
0*Sullivan v. New York El. R, Co.,

794.
Oswald y. McGebee. 506.
Oswalt V. Smith, 060.
Ottawa Gas Light & Coke Co. y.

Graham, 759, 814.
Otterback v. City of Philadelphia, aVi.
Ouilletts V. Overman Wheel Co., 944.
Over V. Schiffling, 543.
Overby v. Chesapeake & O. Ry. Co.,

946, 975.
Overbye v. McGee, 133.
Overend v. Gurney, 329.
Overland Mail & Exp. Co. y. Carroll,

305.
Overton v. Freeman, 238.

V. Rogers, 296.
Owon V. Field, 683.
V. Foster, 667, 668.
V. Hyde, 702.
Owens V. Ernst, 1006.
V. Lewis. 200.
V. Owens, 190.

V. People's Pass. Ry. Co., 882.
Owings V. Jones, 226, 796, 922, 928.
Ownes V. Railroad Co., 943.
Owsley V. Montgomery R. Co., 168.
Oxford V. Peter, 250, 258.
Oxford Lake Line Co. v. Stedham, 828.
Oxley V. Railway Co., 904.

V. Watts, 680.
Ozark Land Co. v. Leonard, 658.

Pace V. Aubrey, 615.

V. Potter, 660.
Pacific Exp. Co. v. Dunn, 669.

V. Foley, 304, 305.

y. Smith, 361.

y. Wallace, 306.
Pacific Ry. Commission, In re, 115.
Pacific Tel. Co. v. Underwood, 307.

Pack V. City of New York. 238.
Packard v. Getman, 718, 727.
Packer v. Heaton, 91.
Paddock v. Somes, 392, 413. 762, 807.

V. Watts, 617, 62L
Padelford v. Padelford, 702.
Padmore v. Lawrence, 526, 539.

V. Piltz, 444.
Page V. Branch, 733.

V. Bucksport, 69.

y. Gushing, 133, 632.

V. Fowler, 741.

y. Freeman, 342.

V. Mllle Lacs Lumber Co., 786.

V. Parker, 55, 578, 640.

V. Robinson, C67.

V. Wiple, 606, 624.
Paget V. Birkbeck, 212.
Paige y. Roeding, 243.
Paine y. Chandler, 759.

V. Northern Pac. R, Co., 6S2.

V. Sherwood, 372.
Paine Lumber Co. y. United States.

754.
Painter y. City of Pittsburgh, 229.

V. Ives, 605, 631.
Painton y. Northern Cent. Ry. Co..

004.
Paland y. Chicago, St L. & N. O. B.

Co., 1020.
Palfrey v. Portland, S. & P. R. Co..

327.
Palmer y. Adams, 523.

y. Atchison, T. & S. F. R. Co.,
1072.

y. Bates, 269.

y. BeU, 594, 595, 599.

y. Broder, 202, 621, 624.

V. Chicago, St. L. & P. R. Co., 824.

v. Gallup, 81.

V. Hummers ton, 199, 522.

V. McMaster, 132, 137.

y. Michigan Cent. R. Co., 1039.

V. New York Cent & H. R. R. Co..
332.

y. St. Paul & D. R. Co., 928.

V. Shcnkel, 674.

y. Sutton, 522.

y. York Bank, 414.
Palraeri y. Manhattan Ry. Co., 258,

262, 279.
Panama R. Co. v. Johnson, 723.

CASES CITED.

1205

[Vol. 1 comprises pages 1-652. inclusive; vol. 2 the residue.]

Pancost T. Bumell, 471.

Pangburn y. Bull, 609.

Pannell y. Naahville, F. & S. R. Co.,

860.
Pautam v. Isham, SIO.
Panton v. Holland, 55, 56, 89, 825.

V. People, 434.
Pantzar v. Tilly Foster Iron Min. CJo.,

1044.
Pappa V. Rose, 118.
Parcells y. City of Aubum, 9^i.
VsLTis V. Levy, 527, 529.
Parish v. Kaspare, 683.

y. WiUiams, 859.
Park V. Detroit Free Press Co., 521,
5;«, 546.

V. Railway Co., 412.
Parke v. City of SeatUe, 75L

V. Kilham, 708.
Parker v. Adams. 878, 977.

V. Barnard, 891, 922, 925.

V. Burgess, 383, 390, 391.

y. Catholic Bishop, 792.

V. Elliott, 458.

V. Farley, 611, 618.

V. First Ave. Hotel Co., 750.

V. First Nat. Bank, 710.

V. Foote, 750.

V. Gtoden, 719.

V. Griswold, 82. 84, 662.

y. Hotchkiss, 669.

V. Huntington, 611, 618, 637-6:19,
649.

y. Knox, 898.

y. Lake Shore & M. S. Ry. Co.,
392, 928.

y. Lombard, 736.

y. Meek, 454.

y. Moulton, 599.

y. New York & N. B. R. Ca, 1009.

y. Pennsylvania Co., 942.

y. Portland Pub. Co., 897.

y. Proprietors of Locks and Ca-
nals, 732.

y. Rolls, 916.

y. Smith, 750.

y. Union Woolen Co.. 781.

y. Winnlplseogee Lake Cotton &
Woollen Co., 804.
Parkes v. Prescott, 246, 251, 382, 401.
Park Hotel Co. v. Lockhart, 1012.
Parkhurst v. Ketchum, 474.

Parks v. Newburyport, 763.

V. Rose, 951.
Parlement Beige, The, 114.
Parmelce v. Loomls, 721.

V. McNulty, 1057, 1077.
Parmlter v. Coupland, 532, 536.
Parmlee v. Adolph, 590.
Pamaby y. Lancaster Canal Co., 170,

179, 183, 180.-
Parrat v. Carpenter, 490.
Parrish v. Pensacola & A. Ry. Co.,

1000.
Parrot v. Wells, 817, 872.
Parrott v. Hiirtsfleld, 152, 153.

V. Housatonlc R. Co., 809.

y. New Orleans & N. B. R. Co.,
869.
Parry v. Smith, 850, 905.
Parsons v. Brown, 688.

V. New York Cent. & H. R. R.
Co., 885.

V. Surgey, 534.

V. Sutton, 742.

y. Tuolumne County Water Co.,
802.

V. Winchell. 395.
Partlow V. Haggarty, 774.
Pasley v. Freeman, 26, 40, 85, 558, 563.

579, 587.
Pasqulni v. Lowry, 839.
Passenger Ry. v. Young, 262.
Pastene v. Adams, 266.
Pastor V. Regan, 420.
Patchell V. .Jaqua, 494.
Pater v. Baker, 551-553.
Patnode v. Warren Cotton Mills, 242.
Patrick v. Colerick, 677, 685.
Patten v. Belo, 549.

V. Gurney, 213.

V. Llbbey, 384.

V. Rea, 252, 27a

V. Wiggen, 912, 9ia
Patterson v. Detroit, L. & L. N. R.
Co., 922.

V. Great Western Ry. Co., 412.

v. Hayden, 456, 460.

V. Marine Nat. Bank, 83.

V. Nutter, 444.

V. Pennsylvania Reform School,
187.

v. Prior, 41.

v. Thompson, 452.

1206

CABhJB CITED.

[Vol. 1 comprises pnges 1-(jo2, inehiBiTe: vol. 2 the residue.]

Patterson v. Towii»eii(l, 8G2.

V. West(Tvelt, 81.

V. Wilkinson, 510.

V. \Vrijj:ht, 582, 583.
PattlHou v. Jones, 531, 543.
Patureau v. McArdle, 700.
Patzack v. Von (ierichten, 123.
Paul V. Frazier. 2(U.

V. Hazeltou, <>5n.

V. Huuuuel, 15!).

V. Slason. 'MM.

V. Sumnierluiyes, G70.
Paule V. Florence Min. Co.. 1017.
Pauley v. Stcain-Ciaujye & lantern

Co., 843. 921.
Paull V. Halferty, 552.
Pavltt V. I^high VaL R. Co.. 300, 1K>3.
PavlovskI V. Thornton, 471, 470, 480.
Pawson V. Watson, 503.
Paxton V. Boyer. 53, 151.
Payne v. Allen, 150.

V. Donepin, (i<)9.

V. HalHtead, 1085.

V. Kansas City, St. J. & C. B. R.
Co., 754.

V. Neweomb, 253.

V. Western & A. R. Co., 50, 140.
101), G:iS, 043. (U9.
Payson v. Casewell, 018.
I'eabody v. Hayt, 18.
Peacock v. Terry, 190.
I'eak V. Frost, 578.

V. Lemon, 222.
Pearce v. Brower, 530.

V. Lemaitre, 519.

V. X(^(lham. 42.3, 4:«).
Pearl v. Walter, 591, 598.
Pearman v. Pear man, 403.
Pearsall v. Western Union Tel. Co.,

310.
Pearson v. Chapin, 297.
I'earson v. ('ox, 374.

V. LiMnaitre. 520.

V. Railway Co., 1055.

V. Sketton, 210.

V. Zehr, 094. 8.")8.
Pease v. Smith, 717.
Peck V. Chouteau, 013.

V. Cooper, 2445.

V. Elder. 794, 808.

V. Hutchinson, 912.

V. Lockridge, 733.

Peck V. Martin, 913, 914.

V. Small, 029.

V. Railroad Co.. 25:1
Ptvkham v. Henderson. 800.
Peddicord v. Kile, 088.
PcMlerson v. Scuttle ConsoL St, Rj.

Co., 311, 318, 320.
Pedley v. Morris, 528.
Pedrick v. Porter, 57v8, ,582.
Pet»l)les V. Patapsco CSuano Co.. HjO.

V. Railway, 737.
Peek V. Derry. 5(R). 587. 589.

V. Gurney. 10, 503, 577, 579, 586.

V. Railroad (\>.. 300, 301.
Peeples v. New Brunswick & A. R.

Co., 2(52.
Peet V. indcago, M. & St. P. lly, Co,,

V. Chicago & N. W. Ry. Co., 1069.
Pelgne v. Sutclife. 159, 103.
Pell V. Rein hart, 224.
Pekln V. Xewell. 181).
Pelton V. Schmidt, 891. 896.
Peltz V. Elchele, 300.
Pence v. Arbuckle, 42, 209.

V. Dozier. 204, 45.3. 454.
Pendlebury v. Grei^nhaigh, 233.
Pen field v. Sage, 740.
Penn v. Pi-eston, 072.

V. Ward, 4:^4, 444.
Pennln.uton v. Meeks, 513.

V. Strt^lght, 124.

V. Todd, 189.

V. Yell, 917.
Pennoyer v. Allen, 749, 760, 775.

V. City of Saginaw, 764.

V. McConnaughy, 113.

V. Willis, 917.
Pennsylvania Coal Co. v. SandersoOt

i'Jtf 8.v».

Pennsylvania Co. v. Chicago, M. & St
P. R. Co., 338.
V. Congdon. 73, 1023.
V. C<mlan, J)45.
V. Davis, 331.
V. I)t)lau. 25, 313, 314.
V. Ellett, 237.
V. Graham, 309.
V. Hensil, 920, 924.
V. Hoagland, 1090.
V. Horton, 924.
V. Kilgore, 957.

CASES CITED.

1207

[Vol. 1 comprises peges 1-652, inclusive; vol. 2 the residue.]

Pennsylvania Co. v. Langendorf , 909.

V. Marion, 400.

V. Myers, 822, 831.

V. Newmeyer. 998, lOSl, 1090.

V. O'Shaughnessy, 819.

V. Philadelphia, G. & N. E. Co.,
741.

V. Roney, 150, 969.

V. Roy, 241, 941.

V. Sears, 994.

V. Stoelke, 882, 944.

V. Toomey, 255.

V. Weddle, 169, 260.
Pennsylvania R. Co. v. Angel, 143.

V. Aspell, 957.

V. Bell, 333.

V. Boyw, 99.

V. Dale, 406.

V. Brvln, 99.

V. Goodenough, 472.

V. Graham, 186.

y. Hope, 77, 375.

V. Horst, 951.

y. Jones, 1058.

y. Kerr, 72, 375.

y. Lippencott, 141, 143, 757.

y. Marchant, 757.

y. Miller, 301.

y. Ogier, 817, 971.

V. Parry, 1079.

V. Patterson, 186.

y. Price, 890.

V. Raiordon, 301.

v. Reed, 1081.

V. Smith, 825.

y. Stanley, 142.

V. Stewart. 1058.

y. Thompson, 144.

V. Vandiver, las, 262.

v. Washburn, 970.

V. Zebe, 462. 1086.
Pennsylvania S. V. R. Co. y. Walsh,

145.
Pennsylvania Tel. Co. v. Vernau, 145.
Penrose v. Curren, Hk5.

Y. Nixon, 807.
Penruddock's Case. 412. 797.
Pensacola Gas Co. v. Pebley, 756.
Penton v. Brown, 675.
People V. Bartels. 134.

V. Bell, 135.

People V. Board of Assessors of
Brooklyn, 351.

V. Board of Health. 784. 789, 801.

V. Butler, 134.

V. Clark, 436.

V. Conner, 9.

v. Cunningham, 793.

V. Daun, 441.

V. Detroit Wliite Lead W^orks,
744, 748, 7(59. 778, 799, 805.

V. Poss, 440.

V. (ileasou, 118.

V. Kenyon, :?*J.">.

V. Leland, 325.

V. Lilley, 9, 433.

V. Ma her, 793.

V. Mining Co., 81.

V. Morehouse, 9.

V. Musical Mutual Protective Un-
ion, 148.

V. Newton, 784.

v. New York Gas Light Co., 186.

V. New York Law School. 149.

V. Pearl, 443.

V. Pease, 135.

V. Queens Co. Com'ra. 184.

V. Roby, 253.

V. Rosenberg, 783.

V. Ryan, 9.

V. San Francisco, 581.

V. State Board of Canvassers, 135,
351.

V. Vanderbilt, 349.

V. Walsen, 11.

V. Willett, 903.

V. Winter, 463.

V. Wood, 898.

V. Yslas. 432.
Peoples V. Yoakum, 206.
People's Ice Co. v. Steamer Excelsior,

406.
Peoria v. Simpson. 214.
Peoria, D. & E. R. Co. v. Aten, 241.

V. Hardwick, 1010.

V. Rice, 967, 1039.
Peppcorn v. City of Black River

Falls, 400.
Perason v. Skelton, 216.
Percival v. Harres. 579, 640.

V. Illckey, 14. 17, 19.
Peregoy v. Wheeler, 738.

1208

CASES CITED.

[Vol. 1 comprises iMiges 1-652, inclusive; toI. 2 the residue.]

Perez v. Raband, 228.

Pergerson v. Etcbison, 51G.

Ferine v. Grand Lodge, A. O. U. W.,

30.
Perionowsky v. Freeman, 913.
Perkins v. Ladd, 718.

V. Lock wood, 315.

V. Marrs, 738.

V. Missouri, K. & T. R., 395.

V. Mitchell, 115, 507.

V. Railway Co.. 45. 819.

V. Rogg, 043.

V. Smith, 280. 710. 735.

V. Stein, 58.

V. Vaughan, 398, 445.
Parkinson v. Gilford. 329.
Perley v. Eastern R. CJo.. 78. 843.
Permlnter v. Kelly, 280.
Perring v. Harris. 79.
Perrlns y. Devendorf, 878.
Perry v. Bangs, 921.

V. Hamilton, 705.

Y. House of Refuge, 126i.

V. Ijovejoy, 406.

T. Porter, 522.

V. Smith, 843.

V. Sulier, 623.

V. Sutley, 429.
Person v. Wilson. 733.
Peruvian G. Co. v. Bockwoldt, 102.
Peschel v. Chicago, M. & St P. Ry.

Co., 1043. 1046.
Pessini v. Wilkins. 331.
Petoler Portable Ry. Manuf'g Co. v.
Northwestern Adamant Manuf*g
Co., 944.
Peterkin v. Martin, 858.
Petors V. Bourneau, 550.

V. Lake, 460, 465.

V. Land, 124.

V. Peters, 463.

V. Stanway, 421.
Peterson v. Haffner, 58, 159, 438.

V. Knoble, 253.

V. St. Paul City Ry. Co., 861.

V. Toner, 607.
Petit V. Mercer, 349.
Petre v. Heneage. 730.
Petrel, The, 1036.

Pf trie V. Columbia & G. R. Co., 817,
824.

Petrle v. Lamont, 210.

V. Williams, 717, 738.
PetHch V. Dispatch Printing Co., 4S."i.

510.
Pettibone v. Simpson, 489.
Pettingill v. Rideout, IL
Pettit V. Addington, 392.

V. Cowherd, 658.
Pfeiffer v. Brown, 763.
Pfingst V. Senn. 805, 806.
Pfltzlnger v. Dubs, 495.
Phelin v. Kenderdine. 371. 455. 459.
Plielon Y. Stiles, 256.
Phelps Y. Dehnore, 724. 731.

V. Nowlen, 50, 557, 645, 758, 773.

Y. Smith, 564.

Y. Steams, 127, 128. .

Y. Wait, 289.

Y. Winona & St P. R. Co.. 950.
Philadelphia y. Masonic Home, 188.
Philadelphia Co. y. Central Traction

Co., 283.
Philadelphia C. P. Ry. Co. y. Hassard,

1091.
PhUadelphia R. Co. v. Harper, 1063.
Philadelphia Traction Co. y. Lightcap,

829.
Philadelphia, W. & B. R. Co. v. Bran-
nen, 260.

V. Hogeland, 982. 983.

Y. Keenan, 994.

Y. Larkin. 442.

Y. Lehman, 1076.

Y. Philadelphia & H. de G. Steam
Towboat Ca, 14^ 98, 194.

Y. Quigley, 169.

V. Stlbbing, 935.
Philadelphia & R. R. Go. y. Anderson,
1085.

Y. Boyer, 919.

Y. Derby, 108, 259, 279, 903, 1082.

Y. Ervin, 919.

Y. Hendrickson, 965.

Y. Hummell, 195.

V. Smith, 747. 796. 961.
Philips Y. Hoyle, 459.
Phillip Best Brewing Co. y. Pillsbury

& Hurlbut Elevator Co., 725.
Phlllippl V. W^olff, 472.
Phillips V. Barnet 217, 463.

Y. Berry man, 324.

J

CASES CITED.

1209

[Vol. 1 comprises yages 1-652, inchiKive; vol. 2 the residue.]

Phillips ▼. Brigham, 725.

V. Chicago, M. ft St. P. Ry. Co.,
1034.

V. Clagett, 311.

V. Covell, 691.

V. Dewald, &S0.

V. Dickerson. 3r)8, 370, 377.

V. Eyre, 11. 10!2.

V. Fadden, 428.

T. Hall, 662.

V. Hoefer, 506.

V. Homfray, 329.

V. Hoyle, 369, 459.

V. Humfray, 297.

Y. Jansen, 480, 603.

V. Kelly, 195.

V. Library Co., 886. .

y. London ft S. W. R. Co.. 404.

V. Terry, 412.

Y. Village of Kalamazoo, 618.

T. Wilpers, 196.
Philo y. Butterfleld. 253.
Phllp V. Squire, 449, 467.
Philpot y. KeUey, 725, 727. 730.
Philpatt V. Missouri Pac. Ry., 334.
Phinizy y. City Council of Augusta,

772. 840.
Phipl y. Saulre. 449.
Phoenix y. Clark, 704.
Phoenix Ins. Co. y. Erie ft W. Transp.

Co., 300.
Phoenix Pot Works y. Pittsburgh &

L. E. R. Co.. 301.
Plcard Y. McCormack, 580.
Plckard y. Collins. 767. 779.

y. Smith, 235, 895.
Pickens y. Diecker, 250, 256.
Pickering y. Barclay, 1063.

y. Busk, 269.

y. Dawson, 576.

y. Rudd, 661.

y. Truste, 743.
Pickert y. Rugg, 741.
Pickett, Ex parte, 351.

y. Pearson, 48.

y. Wallace, 121.
Pidcock y. Harrington, 359.
PiednK>nt Manuf 'g Co. y. Columbia &

G. R. Co., 306.
Piedmont ft 0. Ry. Co. y. McKenzie,
70, 827.

Piepgras y. Edmunds, 674.
Pierce y. Cunard Steamship Co., 973,
975.

y. Ellis. 534.

V. Getchell, 135.

Y. Hilton, 326.

y. Hosmer, 676.

y. Jackson, 131. 132.

Y. Michel, 68.

Y. Railway Co., 1055.

Y. Thompson, 613.

y. Vandyke, 682.

Y. WUson, 596.

V. Wlnsor. 872.'
Piercy v. Ayerill, 129.
Pierre y. Femald, 750.
Pierson y. Glean, 797.

y. Post. 659.
Plette y. Bayarian Brewing Co., 22a
Piggott y. Eastern Counties Ry. Co.,

950.
Pike y. Eddy, 858.

y. Grand-Trunk Ry. Co., 77.

y. Hanson, 421.

V. Megoun, 120, 135.

y. Van Wormer, 509.
Pilcher y. Hart. 777.

y. Leyino, 579.

y. Rawlins, 655.
PUes V. Hughes, 939.
Pill y. Brooklyn Heights R. Co., 363.
PiUott y. Wilkinson, 655, 728, 736.
Pillow y. Bushnell, 445.
Pillsbury y. Moore, 797.
Pinchln y. London & B. Ry. Co.. 661.
Pindar y. Wadsworth, 82, 366.
Pine y. St. Paul City Ry. Co., 1079.
Pine Bluff Water ft Light Co. y. Der-

reulsseaux. 887.
Plngree y. Coffin, 111.
Plnkerton v. Gilbert, 423.

V. Verberg, 429.
Pinkston y. Arrington, 917.
Pinnel's Case, 315.
Pinney y. Berry, 390, 412.
Piollet y. Simmers. 194, 828, 936.
Piper y. Cambria Iron Co., 963.

y. Minneapolis St. Ry. Co., 968.

Y. Pearson, 122, 123.

y. Pueblo City Ry. Co., 861.

y. Woolman, 322, 508, 539.

1210

CASES CITED.

[Vol. 1 compriFos pagos l-(>52, indasive; vol. 2 the resi.lue.]

Pippin V. Sheppard, S)l().
Pitcher v. Lake Shore A: M. S. U. Co.,
10S().

V. IVople'8 St. Ry., 1082.
Pitford V. Armstrong, 441.
PithKk V. Wolis, 727.
Pitt V. Donovan. 552, 553.

V. Yjildon, 915.
Pittard v. Oliver, 479.
Pittsburg, C. C. & St. L. Ky. Co. v.

Burton, 883. 884.
Pittsburg, Ft W. & O. Ry. Co. v.

Powers, 1001.
Pittsburgh V. (5rieK 27, 70. 18(5.
Pittsburgh, C, C. & St L. U. Co. v.
Henderson, 279.

V. Judd, 831.

v. Racer. 10G7.

V. RusB, 396, 1079.
Pittsburgh, C. & St. L. Ry. Co. v.
Adams. 1025.

V. Bennett, 943.

V. Kirk, 253. 2(50.

V. Nelson, 847.

V. Shields, 170.

V. Si)encer, 5<>4.

V. Williams, 1085.

V. Yundt, 882.
Pittsburgh, Ft W. & 0. Ry. Co. v.
Cheevers, 787.

V. Maurer. 279.

V. Vinlng's Adm'r, 984.
Pittsburgh & C. R. Co. v. Pillow. 10J)2.
Pittsburg & L. E. R. Co. v. Henlv,

1022.
Pixley v. Reed, 611.
Place v. Minster, «l'{8.

V. Taylor, 124.
Planck v. Anderson, 83.
Planz V. Boston & A. R. Co., 190, 198.

2(Ki, 1082.
Piatt V. Chicago, St. P., M. & O. Ry.
Co.. 870.

V. Niles. 418.

V. Tuttle, 709, 723.
Platte & D. Canal & Milling Co. v.

Dowell, 024, 988.
Platz V. Cohoes, 194.
Play ford v. United Kingdom Electric

Tel. Co., 900.
Pleasants v. Fant, 951.

V. Railroad Co., 371.

Plevin v. Henshall, 743.
Plucknett v. Tippej'. 416.
Pluckwell V. Wilson, 879.
Plumb V. Ives, 398.
Plumer v. Harper, 796, 797-

V. Smith. 12.
Plumlelgh v. Dawson. 82.
Plummer v. Dill, 81H, 894, 896, 807.

v. Webb, 327, 450.
Plymouth. The, 15.
Ply mp ton y. Dunn, 559.

V. Hall, 30.
Poeock V. Moore, 421.
Poepers v. Railway Co., 72.
Poeppers v. Missouri, K. & T. R.

Co.. 375.
Poindexter v. Greenbow, 111.

V. Henderson, 705.
Pokrok Zapadu Pub. Co. v. Zizkovs-

ky, 503, 513, 525, 536.
Poland V. Brownell, 594.
Polhill V. Walter, 562, 563.
Poling V. Ohio River R. Co., 244, 893.
Pollard V. Lyon. 490.

v. Photogi'aphic Co., 147.
PoUasky v. Minehener, 540. 541.
PoUett V. I-oug, 835.
Polley V. Lenox Iron Works, 735.
Pollock T. Gantt, 388.

V. Pollock. 461.
Polock V. Ploche, 70.
Pomeroy v. Benton, 597.
Pomfret v. Ricroft, 678. 690.
Pomfrey v. Village of Saratoga

Springs, 129.
Pontlac V. Cortes, 85.
Pontlfex V. Midland R. Co., 29, 903.
Poole V. Consolidated St Ry. Co..
1088.

y. (leorgia Railroad & Banking
Co., 1090.

y. Gist, 292.

V. Huskluson, 689.
Pooler V. Reed, 443.
Poor V. Poor, 463.

V. Sears, 225. 980.
Pope V. Benster, 361.

V. Boyle, 224.

y. Pollock, 607, 609.

V. United States, 112.
Popham Y. Pickburn, 533, 537.
Popplewell y. Pierce, 860.

OASES CITKD.

1211

[Vol. 1 comprises padres 1-652, inclusive: toI. 2 the residue.]

Porter v. Dunn, 472.

V. Fletcher, o0(>-598.

V. HlUlebi-and, 9<)2.

V. Railway Co., 2ti3. 337, 405.

V. Tbomaa, 5(5, 287.

V. Waters-Allen Foundry & Mach.
Co., 167.
Forth T. Manhattan Ry. Co., 803, 804.
Port man v. City of Decorah, 1)75.
Portuense. The, 300.
Posnett V. Marble, 512. 540.
Post V. Stockwell, 214.

V. United States Exp. Co., 878.
Postlewaite v. Postlewaite, 469.
Post Pub. Co. V. Hallara, 396, 498,
518, 536. 549.

V. Moloney, 502, 5;i(;-538.
Pott V. Altemus, 357.
Potter V. Cassleton, 176.

V. Faulker, 992.

V. Faulkner, 1035.

V. GJertsen, 600.

V. Lambie. 6(U, 670.

V. The Majestic. 30S, 1079.

V. Mellen, 367.

V. Metropolitan Dist. Ry. Co., 329.

V. Moran, 878.

V. New York Cent. & H. R. R.
Co., 1043.

V. Warner, 914. 970.
Potts V. Dutton, 917.

V. Imlay, 607, (M)8, 633.

V. Quaker City El. R. Co., 689. .
Pottstown Gas Co. v. Murphy, 756,

757, 759, 814.
Potnlnl V. Saunders, 253. 414.
Pouilhi V. Canadian Pac. Ry. Co., 262.
Poulin V. Canadian Pac. Ry. Co., 108r>.
Poulton V. Railway Co., 2.\3, 254, 279.
Pounder V. North Eastern Ry. Co., 1092.
Pow V. Beckner, 428.
Powell V. Bent ley & Genvijr Furniture
Co., 805.

V. Butler, 759.

V. Chesire, 701.

V. Fall, 141, 791, 841, 844, 866.

V. Fletcher, 593.

V. Gagnon, 724.

V. Hoyland, 205.

V. Hurt, 206.

V. Hyland, 728.

V. Mills, 1065.

Powell V. Railroad Co., 301, 336, 698.
704, 805, 806, 1075.

V. Roes, 41, 329.

V. Sat tier. 731.

V. Sims, 7.'»l).

V. Vir^nia Const. Co.. 228.
Powell Duffryn Steam Coal Co. v. TafT

Vale Ry. Co., 358.
Power V. Baker. 214. 342, 343.

V. Borough of Ridgway, 182.

V. Klein, 691.
Powers, In re.. 428.

V. Boston Gaslight Co., 849.

V. C^lty of Boston, 177, 870.

V. City of Chicago, 175.

V. Council Bluflfs, 33(J. 410.

V. Fowler, 572, 592-595.

V. Harlow, 8:50, 895.

V. Railroad Co., 872. 1010.
Powles V. HIder, 241, 105S.
I'owys V. Blagrave. 697, 704.
PozzI V. Shipton, 1059.
Praeger v. Bristol & E. R. Co., 971.
Pratt V. Andrews. 550.

V. Brown, 424, 425.

V. Gardner. 118.

V. Philbrook, 590, 592.

V. Pioneer Press Co., 536.

V. Press Co., 400, 500. 508.

V. Railway Co., 1072, 1074.
Pratt Coal & Iron Co. v. Brawley, 988.
Pray v. Jersey City, 185.
Prendergast v. Dispatch Printing Co..

510.
Prendible V.Connecticut River Manurg

Co. 945, 997. 1022, 1041, 1046.
Prentice v. Village of Wellsville, 848.
Prentiss v. Kent Furniture Manuf' g
Co., 8(;3, 1025.

V. Shaw, 446.
Prerogative, Case of, 149.
Presby v. Grand Trunk Ry. Co., 828.
PreKcott V. Duquesne, 186.

V. Tousey, 480.

V. Wright, 718.
Prescott & A. C. Ry. Co. v. Rees, 979.
Pi-esident. etc., of City of Cincinnati v.

White, liU.
President, etc.. of Franklin Bank v.

Harris, 741.
President, etc., of Yale College v. Stin-
ger, 113.

1212

CASES CITED.

[Vol. 1 comprises pages l-Go2, inclusive; vol. 2 the residae.]

Presnall v. Raley, 654.

Press Co. v. Stewart, 522, 534.

Press Pub. Co. v. McDonald, 396, 50(),

518, 549.
Preston v. Chicago & W. M. Ry. Co.,
998.

V. Grant, 315.

V. Mercer, (5C3.

V. Prather, 819, 901.

V. Smith, 705.
Pretty v. Bickmore, 225, 226, 229.
Pre Witt V. Eddy, 870.
Price V. Baldauf, 357.

V. Barker, 346.

V. Conwa3', 512.

V. Crofts. 603.

y. Graham, 418.

V. Grantz, 368.

V. Harris, 214.

V. Hewitt, 164.

V. Lawson, 756.

y. Oakfield Highland Creamery Co.,
805.

V. Uailroad Co., 922.

V. Soeley, 427.

V. Whiteley. 495.
I'rickett V. Greatrex, 56.
Prideaux v. City of Mineral Point, 983.
Priestly v. Fowler, 1029, 1053.
Prime v. Eastwood, 497.
Primrose v. W. U. Tel. Co., 302, 304.
Prince v. Case, 084.

V. City of Lynn, 176.

V. I. G. & N. Ry. Co.. 191.
Prindle v. Halght, 445.
Pringle v. Chicago, R. I. & P. Ry. Co.,

990.
Prlntup V. Patton, 186, 211, 212, 945.
Pritchard v. Hewitt. 403.
Proctor V. Adams, 678,

V. Cole, 707.

V. HaiTis, 765.

V. McCord, 592.

V. Webster, 530.
Proprietor of Maine Wharf ▼. Proprie-
tors of Custom House Wharf, 800.
Proprietors, etc., of Merrimack River

V. Lowell, 176.
Proprietors, etc., of Quincy Canal v.

Newcorab, 9.
Prosser v. Callts, 490. 508. 510.
Prothro v. Citizens* St. Ry. Co., 1091.

P rough T. Entriken, 619.
Providence y. Clapp, 177.
Providence Ins. Co. y. Morse, 300.
Prudential Assur. Co. y. Aetna Life
Ins. Co., 582.

y. Knott, 353.
Prue V. New York, P. & B. B. Co., 78.
Pruner y. Pendleton, 769.
Pryce y. Belcher, 88.
Pugh V. Calloway, 707.

y. GrifBths, 675.
PuUen V. Glidden, 615, 621.
Pulling y. Great Eastern Ry. Co., 329.
Pullman y. Barker, 377.

V. Hill, 481, 482, 530.
Pullman Palace-Car Co. y. Bales, 470.

y. Gavin, 244, 105a

y. Laack, 68, 1004, 1006» 1052.

y. Lowe, 902.

y. Martin, 105a

V. Mathews, 244.

y. Smith, lOSa .

y. Trimble, 1090.
Pulteney y. Shelton, 353.
Pumpelly v. Green Bay, 143, 177.
Pundeman v. St Charles Co., 182.
Purcell v. Richmond & D. R. Co., 383.

y. St Paul Ry. Co., 72.

V. Sowler, 533.
Purdy V. Rome, W. & O. R. Co., 30a
Pursell V. Horn, 437.

V. Home, 434.
Purtell V. Jordan, 862.
Purton V. Honnor, 608.
Purves V. Landell, 916, 917.
Putnam v. Payne, 153.

y. Wyley, 190, 664.
Putney v. Day, 683.
Pye V. Faxon, 234.
Pyne v. Dor. 710.

V. Railroad Co., 883.

Q

Quackenbush y. Wisconsin ft M. R.

Co., 922.
Quarman v. Burnett, 230, 236.
Quartz Hill Consol. G. Mln. Co. v.

Eyre, 606-608.
Queen, The, 1041.
Queen y. Bradford Nav. Co., 844.

.^-^

CASKS CITKD.

1213

[Vol. 1 comprises pages 1-662, inclusive; vol. 2 the residue.]

Queen v. Brewster, 702.

T. Commissioners of the Land Tax

for Barnwell, 351.
V. Cooiwr, 491.
V. Kenrick, C42.
T. Losk»y, 427.
Queen of I'acirtc, The, 003.
Quested v. Newburyiwrt & A. H. R.

Co., 237.
Quick V. MiUer, 221.

V. Minnesota Iron Co., 1017.
Quilty V. Battle, 220, 222, 8.j«.
Quin V. Moore, 3t56, 907, 908.
Quinby y. Slipper, 354.

V. Tribune Co., 399, 545, 546.
Quincy Horse Ry. & O. Co. v. Gnuse,

862.
Quinn v. Complete Electric Const. Co.,
243.
V. Donovan, 914.
V. Gross, 338.
V. Hclsel, 427, 428.
V. New Jersey Lighterage Co.,

1046,
V. New York, N. H. & H. R. Co.,

333.
T. Power, 253, 260, 278, 279.
V. Scott, 530, 547.
V. Van Pelt, 361.
Quirk T. St. Louis United Elevator
Co., 875.
y. Thomas, 189.

R

Raasch v. Dodge Co., 185.

Rabe t. Hanna, 466.

Race V. Union Ferry Co., 1088.

Radcllff V. Evans, 387.

Radcliflf's Ex*r8 v. Brooklyn, 89, 141-

143, 777.
Radenhurst v. Coate, 775.
Radley v. London & Northwestern

Ry. Co., 974, 976, 977.
Radway v. Briggs, 186.
Ragon V. Railway Co., 9S)3, 1017.
Ragsdale v. Williams, 718.
Hail V. Potts, 135.
Railroad Co. v. Alabama, 112.
V. Androscoggin Mills, 1071.
V. Aspelle, 1090.

Railroad Co. v. Forsyth, 1072.

V. Fort, 1003, 1004.

V. Fraloff, 1060.

V. Gladmon, 161, 872.

V. Greenwood, 646.

V. Lockwood, 300, 303, 1047, 1082.

V. Manufacturing Co., 1072.

V. MitcheU, 1085.

V. O'Donnell, 1065, 1066.

V. Pi-ntt, 1074.

V. Quigley, 396.

V. Reese, 238.

V. Reeves, <53, 1061, 1062.

V. Stort, 830.

V. Stout, 872.

V. Walker, 930.
Railsbnck v. President, etc., of Wayne
County Turnpike Co., 1003.

V. Railsback, 46S.
Railway Co. v. Hicks, 831.

V. Hopkins, 235, 8:37.

V. Hutchlns, 738.

V. Richardson, 845.

V. Ryan, 168.

V. Shields, 265.

V. Spangler, 302.

V. Stephens, 1083.

V. Valleley, 333.

V. Wilcox, 985.

V. Wynn, 1057.
Rainbow v. Benson, 530.
Rainey v. Herbert, 794.

V. New York Cent. & H. R. R. Co.,
920, 925, 926.
Rains v. Simpson, 12;S.
Raley v. Williams, 5(m.
Ramsdell v. Tama Water Power Co..

354.
Ramsden v. Railway, 168, 260.
Ramsey v. Che^, 60.
Randall v. Baltimore & O. R. Co.,
1030, 1039.

V. Brigham, 121, 123, 527.

V. Bufflngton, 89.

V. Cleveland, 703.

V. Evening News Ass'n, 512, 519.

v. Frankford & S. P. C. P. R. Co.,
1092.

V. Hamilton, 526, 528, 532.

V. Hazelton, 88, 602.

V. New Orleans & N. E. R. Co.,
1079.

1214

CASES CITED.

[Vol. 1 compriseB pages l-6o2, iiiclasive; vol. 2 the rcsidae.]

Kandall v. I^ersooH, 352.

V. Roper, 580.

V. Sanderson, 750.
Randleson v. Murray, 243.
Randolph v. O'Riordon, 87i). 983.

V. Town of Bloomtleld, 8(J8.
Ranger v. Great AVestern U. Co., 160.
Rank v. Rank, 742.
Rankin v. Crane, 017-619, 627.
Ranlett v. Blodgett 133.
Ranney v. People, 58;^.
lianHler v. Minneapolis & St. L. Ry.

Co.. 1052.
Ransom v. State, 190.
Ranson y. Kitner, 50.

V. McCurley, 505, 519, 520.
Raphael v. Pickford, 1008.
Rapho Tp. V. Moore, 185.
Rapier v. London Tramways Co., 144,

701.
Rapson v. Curbitt, 238, 241.
Rascher v. East Detroit & G. P. Ry.

Co., 880, 940.
Ratcliffe v. Burton, 674, 075.

V. Evans, 480, 497, 508.
Rathbone v. Railway Co., 300, 305.
Rathke v. Gardner, 702.
Ratte V. Dawson, 831.
Rau, Appeal of, 292.
Rauch V. Lloyd, 194.
Ravenga v. Mackintosh, 019, 62L
Rawbotham v. Jones, 794.
Rawley v. Colllau, 994, 1053.
Rawlings v. Till, 434, 438.
Rawson v. Harger. 578.
Rawston v. Taylor, 701.
Ray V. Law, 008.

V. Tubbs, 159, 103.
Raymond v. Andrews, 087.

V. Bolles, 118.

V. Hodgson, 902.
Rayner v. Mitchell, 27a

V. Nugent, 083.
Raynsford v. Phelps, 129, 130.
Rea V. Harrington, 497.

V. Tucker. 204, 401, 400, 406.
Read v. Bishop, 13.

V. Boston & A. R. Co., 194.

V. Coker, 431, 432, 442.

V. Hudson, 500.

V. Jeffries, 297.

V. Morse, 842.

Read v. I*ennsylvania R. Co.. 843.

V. Spaulding, 66, 1062, 108!).
Reade v. Sweetzer. 536.
Readhead v. Midland Ry. Co.* 105&

1083.
Reading y. Cituimon wealth, 791.

V. Pennsylvania R. Co., 469.

V. Royston, 072.
Reading & C. R. Co. v. Ritchie, 9C3.
Reagan v. Casey, 232, 241, 1035.
Reams v. Pancoast, 200.
Reardon v. Missouri Pac. Ry. Co.- 871.

V. Thompson. 890, 891.
Rearick v. Wilcox. 537.
Receivers of Houston & T. C. Ry. C<>.

V. Stewart, 200, 205.
Receivers of International & G. N. Ry.

Co. V. Armstrong, 945, 1080.
Receivers of Missouri, K. & T. Ry. Co.

V. Olive, 1060.
Rector v. Clark, 125.

V. Smith, 526. 527.
Reddie v. Scoolt, 204.
Redding v. Godwin, 602.

V. Wright. 579, 590^598.
Redemtorist, The, v. Wenig, 693w
Redgrave v. Hurd, 593, 599, 815.
Redigan v. Boston & M. R. Co., 893.

897.
Redman v. Forman, 758.

V. Stowers, 625.
Redmond v. Peterson, 30.
Red River Line v. Cheatham, 875,

1010.
Redway v. McAndrew, 606, 607.

V. Moore, 745, 786.
Reed v. Chilson, 322.

V. City of Birmingham, 337, 783,
793.

V. City of Madison, 174, 176, 872.

V. Conway, 118, 128.

V. Covington & C. Bridge Co., 904.

V. Edwards, 856.

V. Harper, 166.

V. Home Savings Bank, 168, 169.

V. Inhabitants of Northfleld, 774.

V. McRill, 707, 733.

V. Nor thru p, 283.

V. Pennsylvania R. Co., 972.

V. Reed, 408.

V. State, 432.

V. Taylor, 007.

CASES CIT£D.

1215

[Vol. 1 comprises poges 1-652, iiiclii»*ive; vol. 2 the residae.]

Reeder v. Purdy, 4G8, 688, 6D2.
Ileedei- Bros. Shoe Ck). v. PryliuskI,

352.
Reedle v. Railway Co., 230, 236.
Reens v. Mall & Exp. Pub. Co., 241,

878, 883.
Reese v. Hershey, 1006, 1010.
Reese River Silver Mining Co. v.

Smith, 'A-A.
Reeve v. Dennett, 586, SOL

V. Fox, 717.
Reeves v. State, 10, 59.
Reg". V. Brangan. 619.
V. Coghlan, 501.
V. Cotesworth, 437.
V. Delamere, 186.
V. Desmond, 474.
V. Elliott Leigh & Co., 770.
V. Jackson, 463.
V. McDonald, 164.
V. Metropolitan Board of Works,

791.
V. Pargeter. 1085.
V. Pamell, 638, 642.
V. Peck, 642.
V. Pratt, 600.
V. Riley, 661.
V. St. George, 433.
y. United Kingdom Electric Tel.
Co., 745, 770, 863.
Regan v. Luthy, (m.
Regina v. Ashwell, <357.
Regnler v. Cabot, 547.
Rehm v. Pennsylvania R. Co., 956.
Reich V. Union Ry. Co., 949.
Relchel v. New York Cent. & H. R. R.

Co., 1000.
Reichla v. Gruensfelder, 1011.
Reid V. Cow^duroy, 595.

V. Evansville & T. H. R. Co., 63.
V. Fairbanks, 739, 742.
V. Gifford, 794.
V. Hood, 117.
V. Humber, 287.
V. McLendon. 5.53.
Relfsnyder v. Chicago, M. & St. P. Ry.

Co., 861, 892, 946.
RelUy V. Campbell, 1008, 1010.
V. Philadelphia, 181.
V. Railroad Co., 198.
V. Thompson, 671.

Reiuiiardt v. Mentasti, 775.
Relnke v. Bentley, 370.
Reinmiller v. Skidmore. 682.
Relsan v. Mott. 614, 629.
Reiser v. Pennsylvania Co., 1000.
Reisert v. Williams, 1005.
Reiss, Succession of. 447.

V. New York Steam Co., 850.
Reitan v. Goobel, 505.
Relyea v. Kansas City, Ft. S. & G.

R. Co.. KHK).
Uembaugh v. Phipps, 717.
Renck v. McGregor, 428.
Renlham v. Wright, 13, 315.
Renner v. Canfleld, 370, 907.

v. Northern Pac. R. Co., 957.
Renwick v. Morris, 349, 799.
Republican Pub. Co. v. Conroy, 545.

V. Miner, 482, 504, 548.

v. Mosman, 497, 547.
Rerick v. Kern, 686.
Respublica v. Sparhawk, 149, 150.
Restell V. Steward, 525.
Reston v. Pomfreict. 490.
Retan v. Railway Co., 882.
Re vis V. Smith, 527.
Rex V. Abingdon, 475.

V. Burton, 474.

V. Carlile, 533.

V. Commissioners of Sewers of
Pagham, 6.

V. Creevey, 539.

V. Doherty, 606. 611.

V. Gallard, 770.

V. Gutch, 475.

V. Kent, 185, 186.

V. I-rfibouchere, 524.

V. Lindsey, 185.

V. Long, 913.

V. Mawbey, 565.

V. Paine, 475.

V. Pease, 791.

V. Pedly, 411, 796.

V. Rosewell, 676, 800.

V. Seward, 642.

V. Skinner, 52(5, 527.

V. Smith, 88, 767.

V. Walter, 475,

V. Watson, 169.

V. White, 787.

V. Wilcox, 769.

1216

CASES CITED.

[Vol. 1 coinpriseB pages 1-^2, inclatare; toL 2 tlie residue.]

Rexroth t. Coon. 191. 660.
Reynolds y. Boston & M. R. Co.. 1006,
1022.

V. Church, 426.

V. City of Niagara Falls, 391.

V. Clarke, 19. ♦J63, 701.

V. Everett, 358.

V. Franklin, 360. 597.

V. Graves, 913.

V. Haywood, fj29.

V. Horton, 655.

V. Kennedy. 618.

T. New York Cent. & H. R. R. Co.,
943.

T. Robinson, 472.

V. St. Paul Trust Co., 738.

V. Shuler, 661, 721.
Reynolds Co. v. Third Ave. R. Co., 979.
Reyser v. Railway Co., 198.
Rhea V. Railroad Co.. 143, 7lH).
Rheem v. Naugatuck Wheel Co., 575.
Rhlnes y. Evans, 917.

V. Royalton, 378.
Rhoads y. Davidheiser, 7ti2.
Rhoda y. Annis. 270, 594, 599.
Rhode y. Chicago & N. W. Ry. Co.,

SSL
Rhodes y. City of Cleveland, 764.

y. Dickinson, 714, 717.

y. Dunbar, 769, 778, 779, 804, 806.

y. Otis, 686.

V. Rodgers, 325, 399, 439.

y. Walsh, 115.

y. Whitehead, 800.
Bicards v. Wedemeyer, 716.
Riccl V. Mueller, 220.
Rlc. de D. y. Richards, 769.
Rice V. Boyer, 161, 163, 164.

V. Coolidge, 85, 128. .'JSS, 528.

V. Manley, 26. 551. 036.

V. Mexican Nat. R. Co.. 471.

V. Moorehouse, 773.

V. Rice, 371, 468.

V. Yocum, 727.
Rich V. Basterfleld, 226, 245, 776, 796.

y. Bell. 81, 367.

y. Mclnery, 418, 423.

V. New York Cent. & H. R. R.
Co., 6, 24, 88, 95, 814.

V. Pllklngton, 214.
Richard v. Boland, 617.
Richards y. Dower, 692.

Richards v. Hough. 65.

y. Torbett, 701.

V. Wardwell, 733.
Richard*8 Appeal, 777.
Ri(*)iardsou v. Anthony, 677.

V. Atchison. 730.

V. Carbon Hill Coal Co., 915-

V. Coal Co.. 188.

V. (fOddard, 1069.

V. .Tankofsky, 674.

V. Metropolitan Ry. Co., 977.

V. New York Cent. & H. R. R.
Co.. S59.

y. Nortlieastem R. Co.. 1075.

V. Northrup, 406.

V. Pond, 661.

V. Richardson, 732.

V. Silvester, 587.

V. Smith, 707.

V. Van Voorhies, 441.

v. \au Voorhis, 434.

V. \>rinont Cent. R. Co., 140, 143.
7.")1.
Richels y. State, 9.
Richland's Iron Co. y. Elklns, 900,

1020.
Richmond y. Chicago & W. M. R. Co..
924.

y. Fisk. 431, 432.

y. Fiske, 436.

V. Long's Adni'r, 188.

y. Steamboat Co., 1069.
Richmond Gas Co. y. Baker, 94S.
Richmond's Case, 963.
Richmond & D. R. Co. v. Biyins, 963.

y. Brown, 193, 972.

y. Burcsed, 1080.

V. Butler, 311.

V. Dickey, 998.

V. Dudley, 957, 1018.

V. Elliott, 380, 909.

y. Farmer, 825, 968.

V. Finley, 993,

V. George, 1052.

V. Greenwood, 170, 396, 8601

y. Hissong, 941, 1001, 1019.

V. Howard. 817.

V. Jefferson, 402, 1092.

y. Jones, 302, 995.

y. Mitchell, 1019, 105a

V. Payne, 303, 305.

V. Powers, 951, 953,

\

CASES CITED.

1217

[Vol. 1 comprises pages 1-652, inclusive; toI. 2 the residue.]

Richmond & D. R. Co. y. Rush, lOlU.

V. Smith, 1092.

V. Vance, 824.

V. Walker. 313.

V. White, 1070.

V. Williams, 1001, 1018.

V. Worley, 1050, 1051.

V. Yeamans, 829, 861.
Rlchstain y. Washington Mills Co.,

1005.
Richter y. Harper, 822, 825, 969.

V. Meyer. 390.
Ricker v. Freeman, 19, 434.
Ricket V. Metropolitan Ry. Co., 141,
785.

V. Stanley, 523.
Riddle v. Brown, G82.

y. McGlnnis, 401, 452, 456.

y. Proprietors of Locks & Canals,
170, 182, 187.

y. VlUage of Westfield, 868.
Ridenhour y. Kansas City Cable Ry.

Co., 874.
Rideout v. Milwaukee, L. S. & W. R.

Co., 407.
Rider y. Kelso, 596.

y. Rulison, 506.
Ridgely y. Bond, 190.
Riding v. Smith, 387. 651, 554.
Riedel y. Moran» Fitzsimmons & Co.,

230,231.
Riegelman v. Third Aye. R. Co., 8C1.
RIepe y. Elting. 879, 880.
Rlgby y. Bennett, 752.
Rigdon y. Alleghany Lumber Co., 990.
Rigg y. Boston, R. B. & L. R. Co., 884.

y. Earl of Lonsdale, 659.
Riggin y. Brown, 127.
Riggs y. Palmer, 190.
Rightmire y. Sheppard, 654.
Rigmaidon's Case, 474.
Rigney y. Tkcoma Light & Water Co.,

760, 779.
Riley y. Lee, 496.

Rilly y. Boston Water Power Co., 727.
Ring V. Wheeler, 528.
Ringle v. Pennsylyania R. R., 311.
Rio Grande Western R. Co. y. Cham-
berlln, 927.

T. Rubenstein, 379.

y. Vaughn, 927.
Ripley y. Case, 271.

LAW OP TORTS— 77

Rlpfey y. Yale, 665. 066.
Rippy y. State, 153.
Risch y. Von Lillienthal, 590.
Risien y. Brown, 680.
Rlst V. Faux, 452.
Ritchey y. West, 013. 914.
Ritchie y. Sexton, 531.

y. Stenius, 499.

y. Waller, 278.
Rive y. Boyer, 164.
Riversdale Park Co. y. Westcott, 090.
Riverside W'ater Co. y. Gage, 760.
River Weir Com'rs v. Adamson, 141.
Rives y. Wood, 621, 622.
Roach y. Caldbeck, 398, 446.

y. Garvan. 485.
Roadcap v. Sii)e, 222.
Roades y. Larson, 403.
Roath y. DriscoU, 557, 758.
Robb v. Carnegie Bros. & Co., 757, 780.

786, 808.
Bobbins v. Barton, 579, 592.

y. Chicago City, 232.

y. Mount, 160.

y. Robb4ns, 612, 627.

y. Sawyer, 662.

y. Swift, 130.
Robel y. Chicago, M. & St. P. Ry. Co ,

956.
Robelling y. First Nat. Bank, 602.
Roberge v. Winne, 346.
Roberson y. Kirby, 843.

y. Reiter. 352.
Robert Marys' Case, 450.
Roberts v. City of Detroit, 174, 176.
470, 472.

v. Connelly, 452.

y. Graham, 383.

v. Lamb, 525.

v. Levy, 914.

y. Mason, 395.

y. Railway Co., 322.

y. Read, 335.

y. Roberts, 489.

y. Rose, 801, 802.

y. Tayler, 442.

y. Wyatt, 712.
Robertson v. Boston & A. R. Co., 955,
1035.

V. Gourley, 733.

v. Hunt, 717. 731.

y. Hunter, 316.

J*218

CASKS CITED.

[Vol. 1 oomprisofl pages 1-652, iudasive; vol. 2 the residue.]

Robertson v. New York & E. R. Co., 191.

V. Old Colony R. Co., 1078.

V. Parks, 579, 583, 584, 638.

V. Sichel, 138.

V. Wooley, 887.
Robeson v. French. 19L
Robins V. Hope, 599.
Robinson, Ex paite, 121.

V. BauRh, 778.

V. Bird. 735.

V. Bland. 410.

y. Chamberlain, 129.

V. Cone, 8(57, 978, 986.

V. Crost-ent City Mill & Transp. Co.,
689.

V. Exempt Fire Co. of San Fran-
cisco. 947.

V. Jones, 481.

V. Klme, 702.

V. I^wis, 721.

V. Marino, 856, 857.

V. Parks, 640.

V. Powers, 456.

V. Railroad Co., 402, 859, 951. 908,
983, 1085, 1090, 1093, 1094.

V. Richards, 655.

V. Rohr, 136.

y. Simpson, 370.

y. Smith. 777.

V. Southern Pac. Co., 1087.

V. State, 433.

V. VauRhton. 211.

y. Webb. 233.
Robison v. Rupert, 446.
Roblln V. Kansas City, St. J. & C. P*.

R. Co.. 098.
Robshaw y. Smith, 531.
Rochestei* Whlte-Lwid Co. y. City of

Rochester, 124, 135, 176.
Rockey's Estate, 319.
Rockwell y. Brown, 484.
Rock wood y. Robinson, 667.

V. Wilson, 144.
Roddy y. Missouri Pac. Ry. Co., 8r»9,

909.
Rodgers y. Central Pac. R. Co., 70.

y. Lees. 195.

y. McNamara, 08.
Rodney y. St Louis S. W. Ry. Co.,

993, 1020.
Rodney Hunt Mach. Co. y. Stewai't.
714, 717.

Rodriguez y. l^dmlre, 621.

Roe y. Birkenhead, L. & C. J. H. Ov.

45.
Roemer v. Striker, 235, 848,
Roesner y. Herrmann, 303.
Roettinger v. U. S., 112.
Rogahn v. Foundry Co., 253, 277.
Rogan y. Wabash R, Co., 30G.
Rogers v. Brenton, 91.

y. Brewster, 633.

y. Brooks, 666.

y. Buckingham, 253.

y. City of Spokane. 314.

y. Clifton, 199, 522.

y. Coal RIyer Boom & Driyiu;;
Co., 412.

V. Cox. 685.

y. Duhart. 669.

y. Elliott, 781.

y. Evarts, 640.

y. Hanfleld, 769, 807.

V. Huie, 718.

y. Kennebec Steamboat Co.. 301,
1083, 1066.

V. Leyden, 956, 1052.

y. Ludlow Manufg Co., 1044.

V. McDowell. 132.

y. Marlboro Co., 131.

y. Miller. 191. 732.

y. Missouri, K. & T. Ry. Co., 30S

y. Oyerton, 281.

y. Rajendro Dutt. 87, 146.

V. SInsheimer, 752,

V. Spence, 657.

V. Stewart, 797.

V. Taintor. 147.

V. Wilson, 430.
Rohan v. Sawin, 428.
Rohe y. Third Ave. R. Co., 88.").
Rohrschnelder v. Knickerbocker Life

Ins. Co., 583.
Rolin y. Steward, 83.
Rolland y. Batchelder, 480.
Rolle y. Whyte, 792.
Roller y. Blair, 565.
Rollins y. Board of Com'rs., 640.

y. Chalmers, 459.

y. Hicks, 552,
Rollins Inv. Co. y. George, 181.
Romaine y. Van Allen, 741.
Rome R. Co. y. Bamett. 331.
Rommel y. Schambacher, 264.

CASES CITED.

1219

[Voi. 1 comprises paKcs 1-652, inclusire; vol. 2 the rcsiihic]

liomney Marsh ▼. Trinity House

(Jorp., 70, 78.
Romona Oolitic Stone Go. T. l^te,

903.
Rooney v. Carson, 1020.

V. Sewall & Day Cordage Co., 992,
995. 1019.
Roope V. D'Avigdor, 11.
Root V. King. 522.

V. New York & N. E. R. Co., 302.

V. Stevenson. 163.
Rose V. Groves, 379, 787.

V. Miles, 786.

V. Stephens & C. Transp. Co.,
1085.

V. Wilson, 428.
Roseback v. Aetna Mills. 1041.
Roseberry t. State, 450.
Roseman v. Canovan, 589, .'»93.
Rosen v. Stein. 418.
Rosenau v. Syring, 727. 7:{S.
Rosenbaum v. St. Paul & D. R. Co.,

195, 261.
Rosenberg v. Hart, 612, iMX
Rosenfeld v. Peoria & E. Ry. Co., 'Ml,

305.
Rosenfleld v. Arrol. 935, 94.{. 950.

V. Newman. 227.
Rosenkrans v. Barker, 621. 694.
Rosenkranz v, Haas. 429.

V. RaUway Co., 381, 988.
Rosenthal v. Circuit Judge, 351, 632.

T. Davenport, 134.

V. McMann, 707.

V. Taylor, 808.
Rosewater v. Hoffman. .'•04.
Rosewell v. Prior, 226. 411, 795.
Rosowell v. Pryer, 228.
Ross V. Butler, 781, 805.

V. Clinton, 763.

V. Fedden, 836.

▼. Hill, 1058.

V. Hixon, 612, 618.

V. Hobsou, 570.

T. Johnson. 718;

V. Kansas City, 380.

V. Leggett, 430.

V. Madison, 181.

V. Malone, 742.

V. Weber, 404.
Rofiser v. Randolph, 806.

Rossiter y. Minnesota Bradner-Smltli
Paper Co., 611.

Rossman v. Adams, 702, 705.

Rosum V. Hodges, 727, 741.

Both V. Sraltli, 430.

Rothenberger v. Northwestern Con-
sol. Milling Co., 1027.

Rothes V. Waterworks Com'rs, 142.

Rothmlller v. Stein. 576.

Rott v. Wagner. i:«.

Roughan v. Boston & K Block Co.,
995.

Hounds V. Railway Co.. 2.")2, 256, 513.

Rourke v. White Moss Colliery Co.,
228. 1034.

Itouse V. Chicago & E. I. R. Co., 797.
V. Martin. 805.

Rouser v. North Park St. Ry. Co.,
1079.

Roux v. Bhnlgett & Davis Lumber
Co., 955.

Rowand v. Bellinger, 392.

Rowe V. Roacli. 551.
V. Smith. 222.

Rowell V. Railway Co.. 846.
V. W. U. Tel. Co.. 369.

Rowen v. New York, N. H, St H. Ry.
Co.. 979.

Rowland v. Mlln, 1070.

Rowley v. Rice, 632.

Rowning v. (Joodchild, 98, 128.

Roy V. Goings, 619, 622.

Royal Aquarium, etc., Soc. v. Parkin-
son, 526, 528, 527.

Royce v. Maloney, 522.

Roye V. Lent, 913.

Royse v. Ma3', 414.

Royston, Case of, 262.

Rozell V. City of Anderson, 179.

Rubens v. Robertson. 138.

Rucker v. Smoke, 31X5.

Rudd V. Darling, 119, 423.
V. Rounds, 4(i<i.

Ruddock V. Lowe, 913, 914.

Rude V. Nass, .140, .143.

Ruffner v. Williams, 418.

Rugan V. Sabin, 3;i7.

Ruggles V. Insure. 682, (W6.

Rumpel V. Railway Co., asi.

Rumsey v. Railroad Co., 411,

Rundell v. Kalbfus, 639.

12 20

CAS£S CITED,

[Vol. 1 comprises pages 1-652, inclusive; yoI. 2 the residae.]

Rung r. Shooeberger, 783, 703.
Runge V. Brown, 592.

V. Franklin, 520, 527.
Ruolis V. Backer, 527.
Rushin v. Tharpe, 724, 729.
Rushworth v. Smith, 206.

V. Taylor, 727.
Russ V. Steamboat War Eagle, 406.
Russel V. Palmer, 909.
RuBscU y. Bancroft, 796.

V. Bradley, 628.

V. Brown, 411, 412.

V. Butteriield, 715.

y. Chambers, 452, 460.

y. GrimeH, 131.

y. Inhabitants, 183.

y. McCall, 347, 738.

y. Men of Devon, 188.

y. Merchants' Bank of Lake City,
700.

y. Palmer, 916.

V. Railway Co., 261, 1018, 1022.

y. Reagan, 843.

y. Shenton, 220.

v. Sunbury, 330, 331.

V. Tillotson, 802, 1013, 1027.

y. Walker, 132.

y. WlUette, 712.
Russell & Co. y. Polk County Abstract

Co., 25, 338.
Russen v. Lucas, 421.
Ruter y. Foy, 077, 961.
Rutherford y. Chicago, M. & St. P.
Ry. Co., 1020.

y. Holmes, 122.
Rutland Electric Light Co. y. Marble

Electric Light Co., 354.
RuUand & W. Ry. Co. y. Bank, 743.
Rutledge y. Missouri Pac. Ry. Co.,

930, 1002, 1017, 1038.
Ryalls V. Leader, 527.

y. Mechanics' Mills, 1008.
Ryan v. Brewing Co., 040.

y. Copes, 780, 789, 803.

y. Fowler, 1015.

V. Fralick, 453.

y. Louisville, N. O. & T. Ry. Co.,
943.

y. McCully, lOiO.

V. New York Cent Ry. Co., 74.

V. Now York Co., 72.

V. Schilcock, 075.

Ryan y. Town of Bristol, 943, iM7, »6&.

Rybee y. State, 783.

Rybum y. Moore, 426.

Rychlicki y. City of St. lioals, 41&

790.
Ryder v. Wombweil, 956.
Ryerson y. Ryerson, 464.
Rylands y. Fletcher, 51, 59, 107, 14a

249, 475, 769, 815, 833-^36, 838, 842,

852, 864.
Ryman y. Qerlach, 715.
Ryppon y. Bowles, 796.

S

Sabin y. Railroad Co., 142, 143.
Siiblne & E. T. R. Co. y. Ewin^, 402,

947.
Sadler y. Henlock, 228, 231.

y. South Staffordshire & B. D. S.
T. Co., 141, 791, 841.
Safford y. Qrout, 589.
Sage y. Laurain, 128.

y. Railway Co., 207.
Sager y. Portsmouth, S. & P. ft B.

R. Co., 309.
Sagers y. Nudcolls, 242, 250, 253, 292.
Saginaw Union St. Ry. y. Michigan

Cent. R. Co., 093.
Saguinn y. Siedentopf, 581, 597.
Sahlgaard y. St. Paul Ci^ Ry. Co.,

958, 1081.
St. Anthony Falls Water-Power Co. y.

Eastman, 834, 956.
St. Clair St Ry. Co. y. Badle. 9S3.
St Croix Land & Lumber Co. y.

Ritchie, 693.
St Helen's Smelting Co. y. Tipping.

748, 700, 779, 804.
St James Church y. Arrington, 804.
St. James Military Academy y. Gal-

ser, 508, 510.
St John y. American Mut Fire Ins.
Co., 78. .
y. Kidd, 91.
St. Johns & H. R. Co. y. ShaUey, 230,

237.
St Joseph & G. I. R. Co. y. Hedge,

y. Palmer, 301.
St. Ix)uis, A. & C. R. Co. y. Dalby,
168.

CASES CITED.

1221

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

St. Louis, A. & T. H. B. Ck). V.

Clauncb, 412.

V. Corgan, D99.

V. Hawkins, 107&

V. Holman, 1U18.
St Louis, A, & T. R. Co. t.. .Hardy,
1079, 1()80.

V. Knott, 232.

T. Lemon, 1050.

V. McKinsey, 78, 842.

V. Neel, 1064.

V. Robbins, 303.

V. Torrey, 1003, 1023, 1046.

V. Trlplett, 265, 997, 1003.

V. Welch, 261.
St. Louis Bridge Co. v. Miller, 963.
St Louis, I. M. & S. Ry. Co. v. Biggs,
339, 670.

V. Commercial Union Ins. Co., 63,
64.

T. Davis, 1005, 1006.

y. Goolsby, 85a

V. Hackett, 242, 258, 262, 263, 008.

V. Henderson, 1073.

V. Higgins, 1006.

V. Ledbetter, 823.

V. Maddry, 976.

V. Needbam, a'$4, 415, 1048.

V. Rexroad, 98(K

V. Robbins, 903.

V. Taylor, 670.

V. Weakly, 305.

V. Yarborough. 3,^0.
St Louis S. W. R. Co. v. Dobbins,
370.

V. Henson, 470.

V. Jagerman, 1012.

V. Johnson, 064.

V. Moss, 325.

V. Thomas, 377.
St. Louis Stock Yards v. Wiggins Per-
ry Co., 686.
St. I^uis, V. & T. H. R. Co. V. BeU,

829.
St. Louis & S. F. R. Co. V. Dodd, 1070.

V. Farr, 363, 937, 04b.

V. Herrin, 831.

V. Jones, 845.

V. Mitchell, 1084.

V. Richardson, 846i,

T. Sageley, 930.

V. Valirus, 1004.

St. Louis & S. F. R. Co. V. Weaver, 942.

St. Martin v. Desnoyer, 504.

St. Nicholas Bank v. State Nat. Bank,

284.-
St Paul Distilling Co. v. Pratt, 640,

641.
St. Paul, S. & T. F. R. Co. v. Sage,

340.
St. Paul Water Co. v. Ware, 234.
St Peter v. Denison, 177.
Salem Stone & Lime Co. v. Griffin,
993, 1004.
y. Tepps, 1009.
Salimonic Mining Sc Gas Co. t. Wag-
ner, 673.
Salina Creek Irr. Co. y. Salina Stock

Co., 756.
Salisbury v. Green, 677.

y. Herchenroder, 65. 67, 70, 925.
y. Union & Advertiser Co., 532,
533.
Salladay y. Town, 72.
Salmon Falls Co. v. The Tangier, 1069.
Salter y. Howard, 450. 636.
Salt Lake City v. Hollister, 168, 172.
Salt River Canal Co. v. Hickey, 362.
Salt Springs Nat. Bank v. Wheeled

717, 730.
Salvin V. Coal Co., 87, 776, 780.
Sammell v. Wright, 247.
Sammins v. Wilhelm, 888.
Sammuel v. Judin, 18.
Sampson y. Hoddinott, 85, 759.
y. Smith, 150.
y. United States. 112.
Samuels v Evening Mail Ass'n, 169.
v. Richmond & D. R. Co., 397,
1089.
San Antonio & A. P. R. Co. v. Adams,
1080.
y. Corley, 370, 470.
V. Kniffin, 392.
y. Oakes. 846.
y. Parr, 947.
V. Peterson, 023.
Sanborn v. Detroit, 6. O. & A. R. Co.,
892.
v. Hamilton, 717.
Sandback y. Thomas, 628.
Sandbom v. Neilsoo, 465, 466.

V. Sturtevant. 682.
Sanders y. Getchell, 135.

1222 CASE.S CITKDw

[Vol. 1 comprises pases 1-4152, indUBTe; toI. 2 the residue.]

Sanden r. l*aimer, 625, 020.

T. Reed, 067.
Sanderson y. Caldwell, 342.

y. HaTersUck, 790.

T. Pennsylvania Coal Go., 776,
777.
Sandford y. Handy, 578.
Sandifer t. Lynn, 241, 802, 929.
Sands y. ChUd, 286.
Sanford v. American Diat. TeL Co.,
244.

V. Eighth Aye. Ry., 255.

V. Peck, 388.

V. Rowley. 512, 548, 549.

y. Standard Oil Co., 1033.
Sanger t. Dun, 318.

y. Wood, 323.
Sansing y. Risinger, 676.
Sappentield y. Main St & A. P. R.

Co., 1012.
Saratoga Co. v. Deyoe. OSKi.
Sarch y. Blackburn, 18.
Sargent y. Cames. 439.

v. Dennlson, 453.

y. Mathewson, 450.

y. Town of Gilford. 182.
Sarles v. Sarles, 701, 702.
Saucer y. Keller, (585.
Saulsbury y. Village, 170.
Saunders y. Baxter, 532.

y. Clark, 91.

y. Edwards, 339.

y. McClintock, 583, 589.

y. Perkins, 132.
Saussy v. Railroad Co., 843.
Sauter y. New York Cent. & H. R. U.

Co., 382.
Savacool y. Boughton, 131.
Savage v. Brewer, 632, 034.

V. Everman, 315.

V. l\>rklns, 729.

V. Stevens, 569, 571, 599.
Snvannah y. Spears, 179.
Savannah, F. & W. Ry. Co. v. How-
ard, 381.

y. Slater, 858, 941.

v. Sloat, 1009.

V. Watson, 1082.
Savannnh & O. Canal Co. y. Bonrquin,
412.

V. Suburban &, W. E. Ry. Co., 354.

Sayannab & W. R. Co. t. PhiUips.

228^ 233,238.
SayU V. Roberta. 628.
Savile y. Jardlne, 4U&

y. Roberta, 603, 638.
Savin T. Roberts, 101, 606.
Savings Bank v. Ward, 133, 905, 907.

909, 91L
Savings Bank of St Paul y. Artluer.

323.
Savoie y. Scanlan, 499.
Sawyer v. Bennett, 525, 547.

y. Corse, 138.

y. Davis, 790.

y. Dnlan3', 1091.

y. Goodwin, 917.

v. Nelson, 353.

v. Prickett, 578, 584.

y. Robertson, 707, 710.

y. Rutland & B. R. Co., 903, 1035.

y. Sauer, 402.
Saxl>y v. Manchester, S. & L. Ry. Ok.

22a
Saxeby y. Wynne, 735.
Saxon T. Castle, 624.
Sayboard v. Wilbnr, 911.
Sayers y. Hoskinson, 700.
Saylor y. Smith, 18a
Siiyre v. State, 113.
Scales y. Ordinary of Chattahoochee

Co., 183.
Scammon y. Chicago, 232.

y. Wells, Fargo & Co., 305.
Scanlon y. Suter, 185.

V. Wedger, 201, 851.
Scarborough v. Railway Co., 228, 238.
Scarlett y. Norwood, 456.
Scarll y. Dixon. 543.
Schacherl y. St Paul City Ry. Co..

958.
Schachne v. Barnett, 840.
Scliaefer y. Martlialer, 800.

y. Osterbrink, 100, 274.

v. Silverstein, 605, 006.
Schaeffer y. Jackson Township, 69.
Schaffner t. Ehrman, 83, 403.
Schaible y. Lake Shore & M. a Ry.

Co., 882, 1038, 1013.
Scharenbroich v. St Cloud Fiber-
Ware Co., 1017.
Schattgen y. Holnback, 005, 62a

CASES CITED.

1223

[Vol. 1 compcuies imges 1--052, indusiye; vol. 2 the residue.]

Sobaub V. Railroad Co., 414.
Sclieer v. Keown, 420.
Sc'heffel v. Weller, 671.
St'lieffer v. Hallroad CJo., 374.
Scbeffler t. Minneapolis & St Li. Ry.

Co., 1»8, 335.
Soheibel v. Fairbalrn, 600.
Schelter v. York, 150.
Schenck v. Sohenck, 480.
Schenk t. Strong;, 163.
Sehild V. Le^ier, 500.
Schilllnger v. Town of Verona, 69.

V. I nlteil States. 112.
Schimpf T. SUter, 381, 879.
Sohindler v. Milwaukee, L. S. & W.

Ry. Co., 817, 860, 978.
Schlaff V. Railroad Co., 946, 950.
Schlenks v. Central Pac. Ry. Co.,

980.
Schleretb v. Missouri Pac. Ry. Co.,

924, 1030.
Schlichtlng v. Wintjen. 335.
Schlitz V. Pabst Brewing Co., 1026.
Schlitz Brewing Co. v. Compton, 37,

410, 809.
Scblossberg t. I^abr, 160.
Schmeer v. Gaslight Co. of Syracuse,

849, 850.
Schmelder v. McLane, 428.
Sehmid v. Humphrey, 194.
Schmidt v. Cook, 79(5, 987.

Y. Garfield Nat. Bank, 707, -724.

Y. Hughes, 628.

V. Kansas City Distilling Co., 160.

V. Keehn, 220.

Y. Montana Cent. Ry. Co., 1029.

V. St. Louis, I. M. & S. Ry. Co..
370.

V. Steinway & H. P. Ry. Co., 882.

Y. Witherick, 499.
Schralt V. Mitchell, 456.
Schmitt V. Drouet, 134.
Schmitz V. St. Louis, L M. & S. Ry.

Co., 462, 987.
Schraolze v. Chicago, M. & St. P. R.

Co., 831, 963.
Schnebly v. Schnebly, 702.
Schneider v. Heath, 575.
Schnitzius V. Bailey, 762.
Schnur v. Citizens' Traction Co., 987.
Schofleld Y. Railway Co., 9:^2.
School Dist. Y. Bragdon, 160.

School Dist. Y. Neil, 802.
Schoomaker y. Gilmore, 14.
Schorn y. Berry, 468.
SchriYer y. Village of Johnstown, 362.
Schroeder y. Chicago & A. R. Co.,
1024, 1028.

V. Michigan Car Co., 995.
Schroyer v. Lynch, 138.
Schuchardt y. Aliens, 559.
Schular v. Hudson River R. Co., 241.
Schultz Y. Bower. 752, 808.

Y. Byers, 751, 752.

Y. Chicago & N. W. R. Co., 317.
318, 907.

V. Frank, 656.

Y. Johnson, 1015.

Y. Schultz, 463.
Schulz V. Railway Co., 1001, 1051.
Schuize Y. Jalonick, 511.
Schubse-Berge y. The Guildhall, 299.
Schumacher y. St. Louis, 180.
Schumaker v. Mather, 593, 594, 600.

V. St. Paul & D. R. Co., 377, 970.
Schumann y. Torbett, 607.
Schuneman v. Palmer. 467.
Schuyler y. Curtis, 94, 147, 353, 356.

Y. Fitchburg R. Co., 928.
Schuylkill Nav. Co. y. McDonough,

186.
Schwabacker v. Riddle, 563, 568, 51«,

600.
Schwartz v. Brahm, 878.

Y. Davis, 366, 628.

v. McCloskey, 672.
Schwarz v. Judd, 333.
Schwelder y. Lang, 315.
Schwenck v. Naylor, 815.
Sehwenke v. Union Depot & R. Co.,
443.

Scidmore v. Milwaukee, L. S, & W.
Ry. Co.. 1017.

Y. Smith, 449.
Scircle Y. Neeves, 428.
Scofield Y. Kreiser, 720.
Scofield Rolling-Mill Co. y. State, 169.
Scott Y. Bay, 840, 848.

Y. Fletcher, 621.

Y. Hodges, 714.

Y. Hunter, 70.

Y. London & St. K. Dock Co., 8D1,
939, 940.

Y. Manchester, 179.

.1224

CASES CITED.

[Vol. 1 comprises pages 1-C52, inclusive; vol. 2 the residue.]

Scott V. Neely. 356.

V. Pope, 81).

V. St. Louis, I. M. & S. R. Co., 414.

V. Sampsou, 548.

V. Seymour, 102.

V. Shepherd. 18, 71, 74, 76, 151,
851.

y. Stansfield, 122, 526, 527.

V. Watson, 159, 160.

V. Yazoo & M. V. Ry. CJo., 861.
Scotten V. Fegan, 134,
Scottish M. & L. Inv. Co. v. McBroom,

253.
Scovill V. McMahon, 784.
Scran ton v. Catterson, 178.
Scribner v. Beach, 434.

V. Clarlj, 223.
Scrlpps V. Foster, 537.
Scroggin V. Wood, 564, 578.
Scudder y. Crossan, 913.
Seaboai'd Manuf'g Co. v. WoodBon,

381, 963, 994.
Seabury v. Am Eude, 379.
Seacord v. People, 783.
Seager v. Singerland, 458.
Seale v. Shepherd, 656.
Seaman v. Browning, 249.

V. Nethercllft, 526, 52&

V. New Yorlf, 186.
Seare v. Prentice, 20, 816, 912.
Searing y. Saratoga, 200.
Searle y. Sawyer, 704, 710.
Searlcs y. Alabama & V. Ry. Co., 1074.

y. Manhattan Ry. Co., 935.

y. Scarlett, 533.
Searls y. Viets, 420.
Sears v. Chicago, B. & Q. R. Co., 931.

y. Hicklin, 570.

y. Lyons, 392.

y. Seattle Consolidated St. R. Co.,
402, 947.
Seaver v. Adams, 468.
Sebastian y. Cheney, 622, 623.
Secor V. Harris, 508.
Secord y. Railway Co., 188.
Sedalia Gaslight Co. y. Mercer, 140.
Seddon y. Bickley, 1088.
Seefeld y. Chicago, M. & St. P. R. Co.,

863.
Seekins y. Goodale, 130.
Seeley y. Brush, 82.
Seely y. Alden, 410, 694, 809.

Seely v. Blair, 537.

Seeuian v. Feeuey, 392.

Seery y. Viall, 504.

Seidensparger y. Spear, 684.

Selfied y. Hays, 794.

Seither y. Philadelphia Traction Co.,

345.
Selby y. Nettlefold, 678.

y. Wilmington & W. R. Co., 306,
307, 1074.
Selden y. Delaware & H. Canal Co.,

682.
Seldon y. Myers, 318.
Selleck y. J. Langden Co., 402.

y. Lake Shore & M. S. Ry. Co.,
78» 829.
Sellick V. Hall, 797.
Selma & M. R. Co. y. Knapp, 80a
Semayne's Case, 674, 675.
Semple y. Mayor of Vlcksburg, 179.
Seneca Road Co. y. Auburn & R. R.

Co., 19. 366.
Sentenis v. Ladew, 103.
Serapis, The, 869.
Seroka y. Kaltenburg, 219.
Serwe y. Northern Pac. R. Co., 29.
Sesler y. Montgomery, 480.
Sessengut y. Poeey, 234.
Sessions y. Johnson, 342.
Seyerance y. Judkins, 127.
Severingshaus y. Beckman, 504, 639.
Seyem y. Keppel, 726.
Seyier y. Bh*mingham S. & T. U. Co.,
242.

y. Vlcksburg & M. R. Co., 1001.
Sewall y. Catlin, 506.

y. City of St Paul, 181.
Sewai-d y. Vera Cruz, 330.
Seybolt y. New York, L. B. & W. R.

Co., 935, 938.
Seymore y. lyes, 741.
Seymour y. Citizens' Ry. Co., 1090.

y. Greenwood, 247, 253.

y. Peters, 712.
Shaber y. Railway Co., 882.
Shackelford y. Hargreayes, 352.
Shadden y. McElwee, 528, 529.
Shadier y. Blair Co., 185.
Shadwell y. Hutchhison, 411, 412, 703.
Shaeifer y. Sheppard, 472.
Shaffer y. Lee, 408.
Shaf ter y. Eyans, 944.

CASES CITED.

1225

(Vol. 1 comprises pages l-€52. inclasire; Tol. 2 the residue.]

Shane y. Kansas City, 8t J. ft G. B.

Ry. Ck)., 761.
Sbankenbery y. Metropolitan 8t Ry.

Co., 068.
Shanks y. Whitney, 580, 602.
Shanley v. Wells, 428.
Shannon y. Jones, 622.

y. Shannon, 352.
Sfaapcott y. Mugford, 661.
Sharon v. Wooldrick, 686.
Sharp y. Bonner. 822.

Y. Gray, 342.

y. Grey, 1068.

y. Powell, 04, 372, 373.

y. Roes, 132.
Sharpe y. Gray, 1058.

y. Johnstone, 619.

y. Stephenson, 524.

V. Williams, 345.
Sharrod y. Railway CJo., 247, 252.
Shattuc y. McArthur, 525.
Shattnek y. Hammon. 401, 460. 466.
Shaw y. Berry, 902.

y. Chicago, R. I. & P. Ry. Co.,
310.

y. Coffin, 29, 1G5, 297.

y. Hoffman, 384.

y. McCreary, 220.

y. New York, 144.

V. Northern Pac. Ry. Co., 1076.

y. Philadelphia, 933.

y. Webber, 320.
Shay y. Thompson, 203. 445.
Shea y. Boston & M. R. Co., 884.

V. Inhabitants of Milford, 708.

y. Milford, 720.

y. Reems, 256.

y. St. Paul City Ry. Co., 861, 883.
Sbeahan y. Collins, 525.

V. National S. S. Co., 617.
iSheanon y. Pacific Mut. Life Ins. Co.,

319.
Sheckell y. Jackson, 536.
Sheedy y. Chicago, M. & St P. R.

Co., 1008.
Sheehan y. Edgar, 390.

y. Flynn, 763.

y. Stnrges, 444.
Sheeley y. Cokley, 523.
Sheets y. Chicago & I. Coal Co., 99o.
Sheffer y. Railroad Co.. 377. 380.

Sheffield y. Central Union Tel. Co.,

145, 863.
SheffiU T. Van Deusen, 479. 483.
Sheldon y. Carpenter, 604.

y. Dayidson, 577, 678. 582. 5&I,
590, 592.

y. Sheldon, 85.

y. Sherman, 66.
Shelley y. Burr, 249.
Shepard y. Creamer, 838, 950.

y. Hill, 769, 777.

y. Pratt, 73a
Sh^erd y. Wakeman, 551.
Shephard y. Shephard. 699.
Shepheard y. Whltaker, 475, 479, 499.
Shepherd y. Lincoln, 139.
Sheple y. Page, 65.
Sheppard v. Taylor, 4.
Sherbourne y. Yuba Co.. 188.
Sheridan y. Brooklyn Ry., 332, 1091.

V. Charlick, 278.

y. New Quay Co., 736.
Sheriff, Blgelow Co. y. Heintze, 738.
Sherley y. BllUngs, 172; 262, 263.
Sherlock y. Ailing. 15.
Sherman y. Charlestown, 461.

y. Dutch, 603.

y. Railroad Co., 411, 996.

y. Wells, 65.
SherriU v. Connor, 330. 697, 699, 704.
Sherry y. Perkins, 353, 635, 649.
Sherwood y. Hall, 449.

y. Tltman, 465.
She waiter y. Bergman, 458, 460.
Shields y. Yonge, 327, 328.
Shlells y. Blackburn, 816.
Shlgley y. Snyde, 624.
Shllllto Company y. McClung, 111.
Shine v. Wilcox, 699.
Shlnners y. Proprietors of liOt-ks &

Canals, 949, 1054.
Shipley y. Fifty Associates, 838.
Shippen y. Bowen, 53.
Shipps y. Atkinson, 366.
Shippy y. Village of Au Sable. 986.
Shipwick y. Blanchard, 718.
Shires y. Fonda, J. & G. R. Co.. 883.
Shirk y. Shultz, 164.
Shlrlely v. Railway Co., 777.
Shirley v. Crabb. 683.
Shivery y. Streeper, 777.

1226

CASES CITED.

[Vol. 1 comprisoH pages l-652» inclusive; vol. 2 the residue.]

^hook y. McChesDey, 519.
Shoemaker v. Nesbit. 120.

y. South Bend Spark- Arrester Co.,
357.
Shoenfeld y. Fleisher, 283.
:8honer y. Pennsylvania Co., 05C.
Short y. Symmes, 443.
Shorter v. People, 434.
Shotwell y. Dodge, 75G. S09.
Shrewsbury v. Bawtlitz, 414.

y. Blount, 506.
Shrieve v. Stokes, 751.
4Shrimpton & Sons v. Phllbrlck, 596.
Shriver y. Sioux City, etc.. R. Co.,

1064.
Shropshire v. Kennedy, 584.
Shufeldt y. Barlass, 132.
Shuffler y. Turner. 338.
Shumaoher v. St. Louis & S. F. R. Co.,

817, 823. 824.
Shumway v. Walworth & N. Manuf'g

Co., 1047.
Shurtleff v. Parker, 542.

V. Stevens, 531), 542.
Shute y. Town of Princeton, 182.
Sias y. Village of Reed City, 870.
Sibley y. Aldrich. 902.

v. Lay, 520.
Sickles v. New Jersey Ice Co., 924.
Siddall v. Pacific Mills. 1004.
Sidener v. Russell, 614.
Sieber v. Amunson. 313.
Siegrist v. Aniot, 260.
Siemers v. Eisen, 920, 924.
Sieveklng v. Litzler, 579, 584.
Sikes y. Johnson, 160.
Sillars y. Collier, 537.
Silsbury y. McCoon. 740.
Silsby v. Michigan Car Co., 379, 877.
Sllya v. Garcia, 701.
Silver v. Martin, 287.
Silvey v. Lindsey, 135.
Simkins v. Columbia & G. R. Co., 817.
Simmer v. City of St. Piiul. 379.
Simmonds v. Holmes. 153.

v. Railroad Co.. 72.
Simmons v. Brown, 221, 808.

y. East Tennessee, V. & G. R. Co.,
967. 969.

v. Evei-son, 212, 332, 747, 797, 798,
839.

V. Holster, 513. 547.

Simmons y. Jenkins, 352.

y. Lillystone, 720, 730.

y. McConneirs Adm'r. 849.

y. Mitchell, 502.

y. New Bedford, V. & N. S. S. Co.,
10S9.

v. St. Paul & C. Ry. Co.. 944.

V. Simmons, 468.
Simmons* Adm'r v. IjonisvillG & N.

R. Co., 824.
Simmons Medicine Co. y. Mansfield

Dnig Co.. 147.
Simms y. Eiland. 563.

v. Greer, 698.

y. South Carolina R. Co., 874.
Simons y. Burnham, 506, 507, 518, 519.
547.

y. Busby, 458, 459.

V. Monier, 243.
Simpson y. Dufour, 670.

V. Grayson, 4.52. 455, 400l

y. Griggs, 856.

V. Hartopp, 350.

V. Hinson, 738.

V. Mercer, 216.

y. New York Rubber Co.. 923.

V. Savage, 666, 794.

V. Wright, 683.
Sims v. American Steel Barge Co..
1016.

v. Everhardt. 164.
Sinclair y. Eldred, 628.

y. Slawson, 134.
Sindlinger y. City of Kansas City.

177.
Siner v. Stearne, 252, 285.
Singer v. Bender, 18.
Singer Co. y. King, 726.
Singer Manuf*g Co. v. Domestic Sew-
ing Mach. Co.. 353.

v. Greenleaf, 296, 722.

V. Holdfodt, 395.

v. Loog, 551.

V. Rahm, 228, 229, 260.

V. Stillman, 721.
Sing Lee, Ex parte. 784.
Sinnette y. Hoddlck, 739.
Sinsheimer y. United Garment Work-
ers of America, 357.
Siordet v. Hall, (J5.
Sioux City & P. R. Co. v. Smith. 1044.

V. Stout, 953, 986b

C.\syj8 CITKD.

1227

[Vol. 1 comprises peges 1-652, indudye; vol. 2 the residue.]

Sioux City & P. R. Co. v. Walker, 1!84.
Sioux Nat. Bank y. Norfolk State

Bank, 589.
Sipple y. State. 111. 113.
8ira y. Wabash R. Co.. 1002. 1003.
Sir John Bourn's Case, 485.
Sir John Carr v. Hood. 534. 530.
Sir William Bolton y. Deane, 477.
Sisk V. Crump. 101. 886. 887.
Slsson V. Johnson, 358.
Sisson, Crocker & Co. y. Johnson, 354.
Six Carpentei-8' Case, 36, 128. 676, 680,

681.
Skaaraas y. Finnegan, 286.
Skelton y. Fenton Electric Light &
Power Co.. 232. 705.

V. London & N. W. R. Co., 832.
Skenner v. Pinney, 738.
Skinner y. Grant, 524.

V. Gunton, 101, 603, 638, 639.

y. London, B. & S. C. R. Co., 939,
1084,
Skjeggerud v. Railway Co., 963.
Skoglund y. Minneapolis St. Ry. Co.,

460, 472.
Skull y. Glenister. 688.
Slater v. Klmbo. 607. 629.

V. Mersereau, 212-214.
Slatten v. Des Moines R. Co., 140,

143.
Slattery v. O'Connell. 988.
Slaughter v. Gerson. 599.

V. Metropolitan St. Ry. Co., 831.

V. Railroad Co., 389.
Slaughter-House Case. 775.
Slauter y. Fayorite, 664.
Slayton v. Fremont, E. & M. V. R.

Co., 265. 267. 830.
Sleath y. Wilson, 252.
Sleight y. Leavenworth, 635.

V. Ogle, 430.
Slight V. Gutzlaff, 226, 797.
Slim V. Croucher, 16. 565, 568.
Sloan V. New York Cent. Ry. Co., 472.

y. Schomaker. 631.
Slocum V. Putnam, 743.
Sloggy y. Dilworth, 413, 797.
Small V. Banfleld, 632.

V. Howard, 914.
Smart v. Blauchard, 485, 536.
Smethurst v. Barton Square Ind. Cong.
Church, 378, 838.

Smethurst v. Congregational Church,

840.
Smith y. Adams, 608.

v. Alabama, 92.

V. Ashley, 518.

v. Bagwell, 370.

y. Baker, 1025.

y. Bank, 727.

y. Bates, 738.

y. Benson, 686.

V. Bivens, 358.

V. Board of County Com*rs, 182-
184.

y. Boston Gaslight Co., 849.

y. Botcns, 418.

y. Briggs, 706.

y. Buchecker, 524.

V. Burrus, 536, 537, 608» 009, 615.
610, 018, 625.

V. Carlson, 578.

V. Chadwick, 573. 590, 593. 600.

V. City Council of Alexandria, 764.

V. City of Atlanta. 413.

V. City of Des Moines, 950.

V. rity of Pella, 178.

V. City of Rochester, 180, 868.

V. Coe, 485, 499.

V. Colby. 735.

V. Cologan, 47.

V. Condry, 379.

V. Conway, 972.

V. Cook, 855.

V. Davenport, 160.

V. District Township of Knox, 127.

V. Donobue, 854, 856, 919.

V. Drew. 349.

v. Faxon. 761.

V. Felt, 682.

V. Foran, 216.

V. Force, 707, 710.

y. Frompton, 840.

V. Gaslight Co., 939.

V. Goodman, 382.

V. Gould, 128, 137.

V. Green. 373, 378.

V. Griffith, 1076.

V. Hall. 625.

y. Hlggins, 533.

V. Ilintrager. 608.

V. Holmes, i;Vi. 814, OIL

V. Howard, 528.

V. Hughes, 500.

»'- -. -imj;.

Tla— 1

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it. ^* i.

-if* "^n-:«H. ?

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T
T
T

47:iu

«.<^. 511

rf i::x

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\.

r

r.

r,

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T,

r.

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V.
V,
V.
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V.
T.

L->.i* O . l^.

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V.

- I. -y-.l.

r>.# ix ••!. :^.

M.I -i^ -.-4.

M i»^- -i :r..

Mi' i>.L-»-l, •n^.
M Ik •»-;:, 74-',. 7»>>.
M.s-ra',.*r- 577-
M-^-'^n. 4-'L 4.>S. 4»*-^

M.j'v.'-ivr. •i«7. ftf^. 7«>4.

M. :.*-». •77::.

M'^r*^. 77r{.
N>w<im. 4,'52-4rU.
N>w York. 171».

Far k«*t Co.. 277.
ivjah. S'>7.

IN'ttJi,j:ill. (y.f2.

I'hllnYlHi»lila, 179.

rijillljm, 774.

Putnam, 787.

KaIlroa/1 Co..71.78.1«>.lJ>*,2i;2.
2f«>, 2fJ«, 314, 33(), 3rj0. 371. 37:i.
384, 38f), 394, 401, 406, 408, 410,
759, 791, 811, 819, 836, 845, 840.
851, 800, 861, 930, 940, 942, 951,
953, 968, 988, 1020, 1034, 1035,
1055, 1075. 1081.

ReynoldH, 253.

KIcliard, 454.

liicbardB, 509, 581.

T. W.-x^ VS(K 4S1,
717.

522. 516. 714.

«^«.

r. HarnsoD, ol!4.
M^-J:* T. McConathT. 82, 7481
Sdlrlis Case, 309.
SnioLLers t. rf»n^^ 912. 913w
Smjri T. Nirloo. 1«.'2L
SmTth T. Ban:ror. 178.

T. Garter. 702, 704.
Snapp T. Rocbe, 342L
SiM«han T. Metn^Militaii Ry. Go.. 3

470.
Sneedeii t. Harris, 610, 613.
SDeesbj t. Lancashire, etc, Co., 78.
Snell T. Tborp, 714.
Snider t. Adams £xp. Co., 305.

V. City of St Paul, 174, 178.
Snow V. Aller. 297.

V. Fitchburg R, Co.. 898.

v. Jadson. 5o0l

y. Parsons, 91.

V. Wheeler, 643.

V. Whitehead, 757.
Snowden v. Wilas, 686.
Snyder v. Andrews, 481.

V. Cabell. 770, 794.

V. Fulton, 534.

y. Hopkins, 705.

V. Patterson, 856.

V. Railroad Co., 197, 255.

12,

CASES CITED.

1229

[Vol. 1 comprises paffes 1-662, Inclnsive; vol. 2 the residue.]

Snyder v. Snyder, 13, 154.

Sobieskl v. St Paul & D. R. Co., 313,

956, 1001.
Sodowsky y. M'Faland, 900.
.Solinsky v. Lincoln Sav. Bank, 075.
Sollund V. Johnson, 563.
Solma y. Lias, 384, 809.
Soloman y. Wass, 217.
^lomon y. Master, etc., of Vintners"
Co., 752.

y. Traver, 698.
ISolomons y. Dawes, 728.
Soltau y. De Held, 745, 780. 781. 803.
Solyerson y. Peterson, 494, 495.
^Someryille y. Hawkins, 517, 544.
Sommer y. Wilt, 634.
Sorenson y. Dayls, 668.

y. Dundas, 421.
Sosat y. State, 152.
43outer y. Codman, 441.
South y. Denistob, 454.
Southam y. Allen. 506.
Southard y. Minneapolis, St. P. & B.

S. M. Ry. Co., 308.
South Carolina R. Co. y. Moore, 783.
Southcombe y. Armstrong, 545.
Southcote y. Stanley, 35, 226, 280, 892,

894, 896, 897.
South Coyington & C. S. Ry. Co. y.

Gest, 300.
Southeast & St L. R. Co. y. Stotlar,

883.
Southern y. How, 249.
Southern Bell TeL & Tel. Co. y. Con-

stantine, 143, 679.
Southern Deyelopmeut Co. y. Sllya,

578,
Southeme y. Howe, 245, 575.
Southern Express Co. y. Brown, 825.

y. Hess, 1073.

y. Hunnicutt, 307.

y. Moon, 306.

y. Newby, 309.

y. Seide, 306.

V. Wormack, 1063.
Southern Kansas Ry. Co. y. Clark.
1077.

y. Drake, 1050.

y. Moore, 1019.
Southern Pac. Co. y. Ammons, 370,
377.

y. Hamilton, 242, 424.

Southern Pac. Co. y. Kennedy, *2:i^t,
263.

y. Seley, 963, 996.

y. Tomlinson, 942.
Southern Pac. R. Co. y. City of Oak-
land, 353.

y. Dufour, 756.

y. LaflTerty, 266, 992, 1000.
South Florida R. Co. y. Price, 914,

103&
South Royalton Bank y. Suffolk Bank,

56, 146, 772.
South Western Ry. Co. y. Paulk, 330.
Southwestern Tel & Tel. Co. y. Crank,
211.

y. Robinson, 70, 863.
Southwick y. Steyens, 507.
Southworth y. Lathrop, 185.
South & N. A. R. Co. y. Henlein, 1075.
Sowles y. Moore, 62, 755, 8S6.
Spackman y. Foster, 722, 724, 727,

735.
Spades y. Murray, 680.
Spaids y. Barrett 349. 528.
Spaight V. McGoyern, 153.
Spaits y. Poundstone, 479, 480.
Spalding y. Oakes' Adm*r, 774.
Spall y. Massey, 477.
Spargur y. Heard, 690, 754.

y. Uomlne, 322.
Sparhawk y. Union Passenger Ry.

Co., 749, 767.
Sparks y. Heritage, 707.
Spaulding y. Overmire, 137.

y. Railroad Co., 841, 845, 846.

y. W. N. Flynt Granite Co., 967,
99tJ.
Spealman y. Missouri Pac. R. Co., 414.
Spear y. Cummings, 4G1.

y. Sweeney, 393, 440.

y. Tidball. 323.
Speed y. HoUingsworth, 361, 581.
Speight y. Oliviera, 452, 453.
Speir y. City of Brooklyn, 178.
Spellman y. Lincoln Rapid Transit

Co., 10.38, 1084, 1085.
Spence y. Schultz, 236, 238.
Spencer y. Campbell, 847, 851.

y. M'Gowen, 677.

y. Railway Co., 384, 846, 847, 929,
975.
Speusley y. Lancashire Ins. Co., 443.

1230

CASES CITED.

[Vol. 1 comprises \>i\gen 1-652, inclusiye; vol. 2 the residue.]

Sperb T. Motr(>i)<>litan KL Ry. Co.,

141.
Spice V. Stclnruck, (531.
Spicer V. Railroad Co., 377, 400.

V. South Boston Iron Co., 1011.
Spill V. Maule, 530.

Spillane v. Missouri Pac. Ry. Co., 987.
Spltze V. Railroad Co., 314, 315.
Spllttorf V. State, 113.
Spofford V. Harlow, 192, 920, 972.
Spohn V. Missouri Pac. Ry. Co., 1091. '
Spokane Truck & Dray Co. v. Hoefer,

819. 837.
Spooner v. Delaware, L. & W. R. Co.,
909.

V. Holmes, 734, 730.

V. Manchester, 717, 720.
Spoor v. Spooner, 420.
Spotomo V. Fourichon, 487.
Spotts V. Wabash West. Ry. Co., 800. |
Sprague v. Baker, 910.

V. Gibson, 017.

V. Ix)cke, 354.

V. Railroad Co., 077.
Spraijerens y. Houghton, 135.
Spraljfhts v. Hawley, 720.
Sprang v. New York Cent R. Co.,

1001.
Spray v. Am merman, 153.
Springer v. By ram, 1081.

V. Groom, 727.
Springfield v. Spence, 170.
Springfield Engine & Threslilng Co.

V. Green, 014.
Springfield Fire & Marine Ins. Co.,

V. Village of Koeseville, 919.
Sproat V. Directors of Poor, 187, 850.
Sproul V. Hemming way, 228, 241.

V. Pillsbury, 480.
Spurr V. Railroad Co., 345.
Spurrier v. Front St. Cable Ry. Co.,

879, 942.
Squier v. Gould, 391.
S(iuiers V. Neenah. 137.
Squire v. Campbell, 583.

V. Hollenbeck, 009.

V. New York Cent. R. Co.. 1074.
Stnars Case, 903.
Staat V. Evans. 297.
Starve V. Grlfllth, 543.
Stackman v. Chicago & N. W. Ry.
Co., 907.

Stackpole v. Railway Co., 720.
Stacy V. Knickerbocker Ice Co., 62.
V. Milwaukee. L. S. & W. Ry.

\jO»f Oi'l, CrxO.

Stadtfeld y. Henlsman. <>65.
Stafford v. AzbeU, 732. 898,

V. City of Oekaloosa. :«1.

y. Morning Journal Ass'n, 404,
550.
Stahl V. Grover. 009.

V. Mitchell, 1032.
Stalnton v. Woolrych, 759, 814.
Stall V. Wilbur, 707.
Stanard Milling Co. v. White Line

Cent. Transit Co., 299, 1070.
Stanclll V. Calvert. 687.
Standard Life & Ace Ins. C^. t.

Jones, 103.
Standard Oil Co. v. Tierney, 848. 945.
StandlBh v. Babcock, 725.
Stanfleld y. Phillips, 398, 029.
Stanhope y. Swafford, 21i2.
Stanley v. Chicago & W. M. Ry. Co.,
1022.

V. Gaylord, 655, 082, 708, 722.

V. McGauian, 599.

y. Powell. 53, 54, 437, 475.

V. Union Depot R. Co., 68, 375.
977.

V. Webb. 532. 633.
Stannard v. UUltliorne, 917.
Stansbury y. Pogle, 013.
Stanton y. Hart, Oil.

y. Hennessey, 324.

y. Louisville, etc., R, Co., 60.

y. Metropolitan R. Co., 194.

y. Richardson, 10(>8.
Staple y. Heydon, 704.

V. Spring, 809.
Staples v. Schmld, 253, 263, 279, 395.

V. Smith. 005.
Stark y. Chetwood, 553, 554.
Starkie y. Richmond. 354.
Starling y. Turner. 135.
Starnes y. Louisville & N. R. Co., 305.
Starr y. Bennett 581.

V. Jackson, 005, 092.
Starry y. Korab, 584.
State y. Adams, 55.

V. Andrews, 029, 034.

y. Armfleld, 074.

y. Armstrong, 481.

CASES CITED.

vi:yi

[Vol. 1 comprisefi pagea 1-652, iDclasive; vol. 2 the residue]

State Y. Babcock, 214.

State

V. BaU, 777.

Y,

V. Beck, 200.

Y.

V. Beokner. (574.

Y.

V. Berdetta, 783.

V.

V. Bertheol, 770.

Y.

V. Board of Education, ir»0.

V.

y. Board of Health uf City of

Y.

Newark, 783.

Y.

▼. Boyce, 332.

Y.

V. Bryson, 153.

V.

Y. Buclianan, 040.

V.

Y. Buckley. 770.

V.

y. Bnrnham. 11.5, 040.

Y.

V. Burroughs, 503.

Y.

V. Burwell, 441.

Y.

Y. Buswell. 914.

Y.

Y. Carey, 914.

Y.

Y. Chase. 351.

Y.

Y. Cherry, 433.

Y.

V. Church, 434, 435.

V.

Y. City of Mobile, 705, 804, 80."i.

V.

Y. Clyne, 513.

Y.

V. Cooper, 204.

Y.

Y. Copp, 118.

V.

Y. Cox. 41G.

Y.

Y. Crawford. 80«.

Y.

V. Croteau, 931.

V.

Y. Crow. 432, 433.

V.

Y. Dalton, 132.

Y.

Y. Daniels. 135.

V.

V. DaYis, 433.

V.

Y. Do Witt, 049.

Y.

V. Dixon, 439.

Y.

Y. Donaldson, 649.

Y.

Y. Dooley, G77.

Y. Earnhardt, 784.

V.

Y. Farley, 785.

Y.

V. Fleming, 785.

V.

Y. Fox, 378, 580, 814, 858, 908.

Y.

Y. Glidden, 642, 649.

Y.

\. Godfrey, 9, 433.

Y.

V. Gordon, 135.

Y.

Y. Graham, 770.

Y.

Y. Gramelspacher, 699.

V.

Y. Haines, 769.

Y.

Y. Hamton, 432.

Y.

Y. Harris, 21, 129.

Y.

Y. Hastings, 118, 120.

Y.

V. Hathaway, 914.

V.

V. Hill, 130.

Y.

Y. Holman, 793.

Y.

Y. HooYer, 449.
Hope, 738, 739.
Home, 435.
Hunter, 418, 426, 428.
Johnson« 124.
Jones, 444, 914.
Jungling, 392, 634.
Kellogg, 914.
Llnkhaw, 767.
Lonsdale, 541.
Lunsford, 421.
McEuturff, 785.
Mclntire, 481.
Magee, 58;{.
Martin, 435.
Mason, 473, 475.
Mayberry, 637.
Merrltt. 432.
Meyer, 134, ilOS.
Middleliam. 441.
Millard, 770.
Moore, 768.
Morgan, 435.
Mosher, 914.
Myers, 438.
Neeley, 431, 435.
Neidt, 783.
Norton, 649.
O'Brien, 1085.
Olympic Club, 203.
Osborn, 491.
Peacock, 441.
Powell, 770.
Prather, 584.

Railway Co., 77, 300. 313, 314.
333, 337, 943, 977, 983, 1072.
Rawles, 435.
Remhoff. 856.
Rhodes. 463.
Rose, 770.
Sauer, 973.
Saunders. 785.
Schmitt, 537.
Schoonover, 414.
Sears. 9.
Shepard, 9.

SheriCr of Ramsey Co., 789..
Shipman, 435.
Shoemaker, 480.
Smith, 9, 245, 433, 676.
Stanley, 785.
Steyens. 414.

1282

CASES CITED

[Vol. 1 coinprisi's pages l--Co2, inclusiye; vol. 2 tlie residue.]

State V. Stewart, 642. 649.

V. Supervisors, 128.

V. Suttle. 754.

V. Tall, 11.

V. Tittman. 699.

V. Toole. 770.

V. Torlnus, 43, 111.

V. Township Committee of Nep-
tune, 857.

V. Trask, 764.

T. Tweedy, 439.

V. United States. 112.

V. Vanderbilt. 444.

V. Van Doran, 914.

V. Walford, 130.

V. Wilkinson, 784.

V. Wolever. 119, 121.

V. Wolf, 783.
State Auditor v. Atchison, T. & S.

F. R. Co., 120.
State of Virjfinla, The, 103.
State Steamship, In re, 103.
Staton V. Norfolk & C. R. Co., 747,

763.
Staub y. Benthuysen, 481.
Steamship Co. y. Joliffe, 21.
Steams v. Atlantic & St. L. Ry. Co..
846.

V. Marsh, 73a

y. Miller, 122.

V. Sampson, 56, 436.
Steams' Ex'r y. City of Richmond,

751.
Stedman v. Smith, 668.
Steel y. Kurtz, 334.

y. Metcalf, 392.

V. Southeastern Ry. Co., 230, 232.
23J.

V. State Line S. S. Co., 1008.

V. Williams, 631.
Steele v. Brannan. ,533.

V. Burkhardt, 102, 193, 925.

V. Crabtree, 131.

V. McTyet, 1058.

V. Marsloano, 736.

V. President Western Inland Lock
Nav. Co., 186.

V. Schrlcker, 713.

V. Southwick, 489, 506.
Stcen V. St. Paul & D. R. Co., 1021.
Steffen v. Chicago & N. W. Ry. Co.,
936.

Steffenson y. itailway Co., 1055.

Stein y. Burden, 82.

Steinam y. Bell, 898.

Steinbach y. Hill, 367.

Steiner y. Cllsby, 28.

Steinhauser y. Spraul, 220, 281, 991,

995. 1016.
Stelnke v. BenUey, 412, 744. 797.

y. Diamond Match Co., 1052L
Steinmetz y. Kelly, 439, 961.
Stelnweg y. Erie R. Co., 1089.
Stellwagen v. City of Winona, 8G8.
Stephens y. Benson, 686.

y. Elwall, 286. 719.

y. Myers, 431.
Stephenson y. Brown, 654.

y. Flagg, 362.

y. Hall, 461.

y. Hart, 719.

y. LitUe, 190.

y. Southern Pac. Co., 265, 9G7.

y. Wilson, 656.
Sterger y. Van Slcklen, 224, 225, 891.

807.
Sterling y. Jackson, 679.

y. Warden, 684, 686, 688.
Stem y. Katz, 496.
Sternwakl y. Siegel, 674.
Stetler y. Chicago & N. W. Ry. Ca,

1035.
Stetson V. Faxon, 765, 808.

y. Riggs, 592, 600.
Stevens y. Able, 297.

y. Allen. 564, 570, 580, 592, 597.

y. Armstrong, 241.

y. Austin, 728.

y. Curtis, 718.

y. Dudly, 377.

y. Eanes, 732.

y. Elwall, 735.

y. Fassett, 621.

y. Hlnshelwood, 279.

y. Jeacocke, 659, 919.

y. Kelley, 57, 557.

y. Metropolitan Ins. Co., 619.

y. Nichols, 891.

T. Pantlind, 227.

y. Railroad Co., 168, 616, 906.
1056.

V. Walker, 916.
Stevenson, The J. G., 1061.
Stevenson y, Belknap, 457.

GASfiS CTfED.

1 09»>

[Vol. 1 compriHcs pages 1-652, inclu-sive; vol. 2 the residue.]

Stevenson v. Fitzgerald, 700.

V. GeliJtLori)e, *Ji3.

V. Newnham, 773.

v. 8mitli, 3H4.

V. Valentine, 732.

V. Watson, 118.
Stevens Point Boom Co. v. Heilly, 754.
Steward v. Gromett, 600, Oil.

V. Young, 551-553.
Stewart v. Balderston, 207.

V. Benninger, 677.

V. Briglit, 711, 741.

V. Brooklyn Ry. Co., 262.

T. Chadwick, 753.

V. Cincinnati, W. & M. R. Co., 802.

V. City of Clinton, 704.

V. Cooiey, 117.

V. Great Western Ry. Co., 310.

V. Hall, 528.

V. Harvard College, lOlL

V. Lovell, 512.

V. Martin, 342.

Y. Minnesota Tribune Co., 493,
501, 511.

V. Ohio River R. Co., 036, 1014.

v. Parnell, 283.

V. Pierce, 495.

v. Raab, 014.

V. Ripon, 370, 381, 1060.

V. Sonneborn, 620, 626.

V. Southard, 86, 118.

V. Stearns, 572, 596, 507.

V. Terre Haute & I. R. Co., 334.

V. Thompson, 605.

V. Tribune Co., 546.

V. Wilson, 485, 400.

V. Wyoming Cattle Ranch Co.,
576.
Stickney v. Bronson, 401.

V. Jourdan. 602.

V. Town, 60.
Stiff V. Fisher, 362.
Stiles V. Cardiff Steam Nav. Co., 170.

V. Geesey, 973.

V. Laird, 700.

V. Tilford, 450.
Stilling V. Town of Thorp, 174.
Stillson y. Hannibal & St. J. R. Co.,

085.
Stillwell V. Farrell, 721, 730.
Stilwell V. Barter, 523.
Stlmer v. Bryant, 623.

LAW OF T0KT8— 78

Stimmel v. Brown, 751, «J0.
Stimpson V. Connecticut River R. Co.,

1077.
Stimson ▼. Farnham, 81, 83.
Stitt V. Little, 563, 591.
Stitzell V. Reynolds, 510.
Stlx V. Sadler, 564.
Stock V. City of Bostt)n, 898.
Stockdale v. Hansard, 85, 115, 529,
532.

V. Onwhyn, 190.
Stocking v. Howard, 605, 621.
Stockley v. Hornidge. i\\T\,
Stockton V. Frey, 315, 732.
Stockwell v. Township Board of
White Lake, 110.

V. United States, 291.
Stoddard v. Inhabitants of Winches-
ter, 181.

V. Village of Saratoga SpHngs,
176, 180, 798.
Stofflet V. Stofflet,-379.
Stokes V. Bumey, 293.

V. Saltonstall, 0<57, 1084.

V. Stokes, 494.
Stoltz V. Kretschmar, 666.
Stone V. Bum pus, 91.

V. Cartwright, 28.5.

V. Cheshire R. Coi-p., 236.

V. Chicago, St P., M. & O. Ry. Co.,
393.

V. Chicago & W. M. Ry. Co., 319.

V. City of New York, 410.

V. Denny, 563-5a5.

V. Dickinson, 214, 342.

V. Dry-Dock, E. B. & B. R. Co.,
161, W3.

V. Evans, 470.

V. Graves, 117, 118.

V. Groton B. & M. Co., 104.

V. Hills, 278.

V. Hunt, 751.

V. Knapp, 681.

V. State, 112, 113, 836.

V. Stevens, 605.

V. Town of Poland, 950.

v. WelUer. 317.
Stoolfoos V. Jenkins, 165.
Storer v. Eaton, 283.

V. Go wen, 819.
Storey v. Ashton, 278.

y. Challands, 542.

1 2;u

CASES CITED.

[Vol. I <*ompriKos piif^os l-<}52, inclusive: rol. 2 the residae.]

Storey v. Wallace, 546.
Hturra y. Barker, 382.

V. City of Utica, 234.

V. Feick, i^tS,
Ktory V. Cliallard, 540.

V. Downey, 220.

V. Odin, <«51, 750.
Story & I. Commercial Co. v. Story,

7 Hi. 7.T2.
Stoudeumire v. De Bardelaben, 702.
Stoudt V. Shepherd. 4r»(>, 457, 400.
Stough v. State, 913.
Stoughton v. Manufacturers' Natural

Gas Co., 007.
Stout v. McAdams, 754.

V. Wren, 200.
Stovall V. Smith, 304.
Sfowe V. Heywood, 305, 400. 407.
Stowell V. Lincoln. 90. 307.
Strahlendorf v. Uosentahl, 1007.
Straight v. Bum, 750.
Strand v. Chicago & W. M. Ry. Co.,

958.
Strang v. Ryan, 91.

V. Whitehead, (J29.
Strange v. Powell, 414.
Stratton v. Central City U. R. Co..
935.

V. liockhart, 015, 021.
Straub v. Eddy, 920.
Straus V. Rnrnett, 807.
Strauss v. Dundon. <»33.
Street v. Gugoll, 749.

V. I^gwell. 7(J7.
Street R. Co. v. Nolthonlus, 944.
StreiflT v. C\ty of MllwauktH*. 170.
Strickfadon v. ZIppriok, US.
Strickland v. Barrett, 735.

V. IVnnsylvanla R. R., 000.
Strickler v. Midland R. Co., ;«7.
Striegel v. Moore, 50.
Stringer v. Frost, 877.
Strlngham v. Hilton, 1011, 1044.

V. Stewart, 1052.
Stro<ider v. Stone Mountain (iranite

Co., 320.
Strode v. Clement, 510, 531.
Stroebel v. Whitnt^y, 505.
Strohl V. Tiovan, 100.
Strong V. Campbell, l.'{0.

V. Iowa Cent. Ry. Co., 1028.

V. Strong, 323.

Strong's Estate, In re, 205.
Strouse v. Leipf, 220, 221. 85a
Strout V. Goocli, 421.

V. Millbridge, 754.

V. Packard, 640.
Struck V. Chicago, M. & St. P. Ry.

Co., 883, 8S4.
Stnidley v. Railway Co., 871.
Strutzel V. St Paul City Ry. Co., IJS.

OSS. .
Stryker v. Crane, 858.
Stuart V. Bell, 513, 53a

V. Crawley, 1075.

V. Phelps, 718.
Stubbs V. Beene, 910.
Stuber v. McEntee, 312, 955.
Stubley v. Railroad Co., 88:1. J«3.
Studwell V. Shapter, 165.
Stuillebeam v. Montgomery, 751, 787
Stumer v. Pitchman, 504.
Stump V. McNalrj', 800.
Stumps V. Kelley, 18.
Sturam y. Hummell, 405.
Sturges V. Bridgman, 792.

V. Keith, 7ia

V. Society, 232-234.

V. Wairen, 694.
Sturgis V. Kountz, 71.
Sturgiss V. Bissell, 107a
Sturman v. Stone, 707.
StmteTant v. Root, 510.
Stutz V. Armour, 1043.

V. Chicago & N. W. R. Co., 37a
Stuyvesant v. Wilcox, 441.
Suarez v. Railway Co., 141.
Submarine Tel. Co. v. Dickson, 370.

V. Dixson, 280.
SulTem v. Butler, 318.
Sullivan V. City of Syracuse, 950.

V. Huese, 91.

V. Ix)Ulsville Bridge Co., 979.

V. Murphy, 50, 105.

V. O'Hara, 090, 703.

V. Rabb, 692.

V. Railroad Co., 190, 327. 3t>5. 449.
892, 939, 953, 1020, HKil, lO-W,
10;«>, 1043, 1084, 1085.

V. Scripture, 880.

y. Shanklin, 124.

V. Siilllvan, 482.

V. Waters, 897.

V. Zeiner, 752, 753.

CASE8 CITED.

i2a.>

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the ro»iiliio.J

Soltaua, The, v. Chapman, KKHK
Summerfteld v. W. IJ. Tel. Co., 3(«>.
Summei-sett v. Jarvis, 205.
Sunbury Ins. Co. v. iliimble, 270.
8underiin v. Bradstreet, 5:il, 'A\.
Sunman v. Brewin, 524.
Surocco V. Geary, 149.
Sosquehauna Fertilizer Co. v. Malone,

7GD, 774, 777, 778, 787.
Sutherland v. Inj^ailn, 210, 240, 2.M.
Sutphea v. Town of North Heuip-

8t4'ad, 177.
Sutton V. Buck, 712.

V. Clarke, i;W. 142.

y. Huffman, 452.

V. Johnstone, 529, 015, ilZi,

V. McConnell, 619, 623.

V. Moody, 059.

y. Morgan, 590.

y. Smith, 199.

V. Town of Wauwatosa, 77, IIH.
Sutton & Ash V. Card, 88.
Suydam y. Jenkins, 741.

V. Moffat, 528.

V. Moore, 243.
Syenson y. Atlantic Mail S. S. Co..

1U34-1036.
Swaboda's Case, 955.
Swadley y. Missouri Pac. Ry. Co., 950,

993.
Swain y. Fourteenth St R. Co., 861.
Swaine y. Great Northern U. Co., 804.
Swainson y. Railway Co., 281, 10:U,

1037.
Swan, In re, 785.

y. Tappan, 553.
Swann y. Rary, 52:J.
Swanson y. City of Lafayette, 1003.

y. French, 938.
Swantz y. Pillow, 717.
Swart y. Rickard, 425.
Sweat y. Boston & A. R. Co., 1009,

1011.
Sweeney v. Baker, 537.

y. Berlin & J. Env. Co., 995.

y. Lomme, 133.
Sweeny y. Barrett, 891, HiKJ.

y. Old Colony & N. R. Co., 195.
890, 892.

y. Torrence, 038.
Sweet y. Barney, 1057.

y. Sprague, 801.

Swei^thind y. Stetson, 009.
Sweetzer y. Boston & M. R. Co., 200.
Swousgaard y. Davis. (511.
Swenson v. Kleinschmidt, 710.
Swett y. Cutts, 758, 700.
Swift y. Cliamberlain, 010.

y. Dick(4'man, 493, 497.

V. James, 707.
Swlnartou v. I^ Boutillier, 2<J3.
Swindell v. Houck, (}25, 029.
Swinfen v. Chelmsford, 915.
Swlntin y. bowry, :W0.
Swire y. Francis, 209.
Syeds v. Hay, 714.
Sykes y. Dixson, 4."i0.
Sylyester y. Jerome, 3.57, 705.

V. Maag, S5(>.
Syme y. Ricliuioud & D. R. Co., 831.
Symonds y. Hall, 13.i.

T

Taaffe y. Downs. 120.
Tabart y. Tipper, 473.
I Tabert v. (^ooley, (;20.
Tabler v. Hannibal & St. J. R. Co.,

1011.
Taft V. New York, P. & B. R. Co.,

078, 929.
Tagg y. McGeorge, loai.
Taggard y. Innes, 155.
Tain tor v. Mayor of Morristown, 092.
Tait y. Thomas, 414.
Talbot V. New York & H. R. Co., 691.
Talbott V. King, 784, 800.
Talley y. Courter, 9(59.
Tallon y. Tallon, 200.
Tally y. Ayers, 50, 822.
Talmage y. Smith, 438.
Talty V. City of Atlantic, 831.
Taneo y. Booth, 293.
Tangier, The, 1(KJ9.
Taiigney y. J. B. Wilson & Co., lOOS.
Tanner y. Trustees, etc., of Albion,

777.
Tanner's Ex'r v. Railroad Co., 944.
Tapliug y. Jones. 88. JM, 750.
Tapp V. Lee, 502.
Tappan y. Powers, 040.
Tapscott y. Lyon. 200.
Tarlton y. MCiawley, 379.

1236

CASES CITED.

L^'ol. 1 comprises pngos 1-(*m2, iiiclUMive; vol. 2 the residue.]

Tarploy v. Blaby. 477, 54.'*.

Tarry v. Ashton, 235, 274, 771, 840, 039.

V. Brown, 669.
Tasbrough v. Day, 387.
Tasker v. Stanley, 406, 4C7.
Tate V. City of St. Paul, 170.

V. Railroad Co., 802.

V. Watts, 002.
Tatnall v. Courtney, 3(57, 445.
Tatton V. Wade, 20. 590.
Taylor v. Abbott, 750.

V. Ashton, 5(m, 500.

V. Bldwell, 55, 127.

V. Bowers, 713.

V. Bradley, 400.

V. Church, 541.

V. City of Cumberland, 708.

V. Cleinenson, 123.

V. Cole, 002.

V. Coolidge, 4,'?0.

V. Doremus, 118.

V. Ellington. .504.

V. Felder, OIX), 738.

V. Fickas, 758.

V. Flec-kenstein, 590.

V. (iorman, 917.

V. CJreen, 222.

V. Guest, 5J)3.

V. Hawkins, 510, 540.

V. Hayes, 070.

V. Holmau, 825.

V. Jones, 081.

y. Kneelaud, 511, 513.

V. Larkin, 320.

V. Lyon, 727.

V. Moore, 1.30, 132.

V. Newman, 152.

V. Peckham, 838.

V. Pennsylvania Co., 1084. 1088.

V. Perkins, 509.

V. Plymouth, 150.

v. Pope, 735.

V. Railroad Co., 170, 919, 10:55,
1008, 1089.

V. Ralnl)ow, 50.

V. Saurman, 597.

V. Shelkett, 459.

V. Smith, 27.

V. Stendall, 841.

V. Strong, 428.

V. Whitehead, 078.

Taylor, B. & H. R. Co. v. Montgom-
ery, 300.
Taylor Co. v. Stanley, 040.
Taylor's Adm'r v. South Covinfftoa

& C. St. Ry. Co., 195.
Taylor's Case, 007.
Teagarden v. Hetfield, 305, 385.
Teague v. Irwin, 580.
Teall V. Felton, l.kS.
Tear v. Freebody, 727.
Tearuey v. Smith, 129. 704.
Tebbutt V. Bristol & Exeter Ry. Co.,

280.
Tefft V. Wilcox. 913, 914.
Telegraph Co. v. Texas, 302.
Temperton v. Russell, 635, 638, G45.

040.
Temple v. Mead, 135.

V. Turner, 4.
Templemore v. Moore, 694.
Tenipleton v. Linn Co., 183.
Tenant v. Goldwin, 39, 663.
Tenck v. Great Western Ry. Co., 169.
Tenhopen v. Walker, 152, 395.
Tennessee C, L & R. Co. v. Hayes.
242.

V. Herndon, 1011.
Tennessee & C. R. Co. v. Moore, 351.
Tenney v. Bank, 737.

V. Harvey, 422, 430.

V. Tuttle, 951.
Terre Haute Ry. Co. y. Clem. 949.
Terre Haute St Ry. Co. v. Tappen-

beck, 942.
Terre Haute & I. R. Co. v. Buck, 72,
73.

V. Graham, 825.

T. Jackson, 262.

V. Schaefer, 899.
Terre Haute & L. R. Co. y. Walsfc,

301, j840, 945.
Terrell v. Bennett, 563.
Terry v. Allen, 705.

V. Fellows, 520.

V. Hutchinson, 452, 459.

V. Munger. 323, 346, 347, 721.
Terwilliger v. Wands, 497.
Texarkana Gas & Electric Light Co. v.

Orr, 392, 955, 900.
Texas Trunk R. Co. v. Mulllns, 1089.
Texas & N. O. R. Co. v. Echols, 1002.

CASES CITED.

1237

LVoh 1 comprises pages 1-652, inclusi-^o; vol. 2 the rosulue.]

Texas & N. O. R. Co. ▼. Hare, 860.
Texas & P. U. Co. v. Adams, 308.

V. Bailey, 157, 3(J2.

V. Barnhart, 1072.

V. Best, 883.

V. Black, 1081.

V. Bloom, 171.

y. Brick, 454, 402, 1005.

V. Bryant, 020, 1003.

V. Buckelow, 1085.

V. Cox, 104, 053, 1040.

V. Crow, 311.

V. Curry, 380.

V. Doherty, 210.

V. Ka.stuD, 1030.

V. Fletcher, 086.

V. Gains. 847.

V. Gay, 206.

V. Gorman, 819.

V. Hall, 087.

V. Hohn, 402.

V. Interstate Transp. Co., 355.

V. Johnson, 171.

V. Ludlam, 377, 1087.

V. McDowell, 3(;2.

y. Mang:um, 224.

V. Mlnulck, 1019. ,

y. Mitchell, 1003.

V. Morin, 462.

y. Mother, 197, 262.

V. Nelson, 100, 324.

y. Nolan, 884.

y. O'Donnell, 198, 402.

y. Patton, 994, 1010.

y. Roberts, 831.

y. Robertson, 334, 993.

y. Rogers, 1015, 1010. 1046.

V. Scovllle, 256, 264.

V. Torrey. 6(54.

V. Volk, 304. 871, 041.

y. Watkins, 886.

y. White. 100(5. 1080.

y. Williams, 270, 277, 1001.
Thacfeer y. Hawk. 135.

y. Howells, 672.
Thackrah y. Haas, 320.
Thaln y. Old Colony K. Co., 10a3, 1005.
Thames Steamboat Co. y. Housa tonic

R. Co., 253.
Thatcher y. Central Traction Co., 71,
862, 055.

V. Morris, 722.

Thayer y. Boston, 181.

y. Brooks, 413.

y. Flint & P. M. R. Co., 028.

y. Manley, 737.

y. Sherlock, 308, 694.
Theroux y. Northern Pac. R. Co., 336.
Thibault y. Sessions, 504, 505. 519, 523.

546, 549.
Thimmelthorp's Case, 49.5.
Thisler y. Miller, 325.
Thistle y. TTnion F. & Ry. Co., 4(»8.
Thobiirn y. Campbell, 843.
Tlioenlin y. Campbell, 73.
Tholen y. Brooklyn City R. Co., 94(5.

954.
Thorn y. Bigland. 562, 5(5:5, 573.

y. Pittard, 1040.
Thonian y. Chicago & X. W. Ry. Co.,

1027.
Thomas y. Blasidale, 4as, 504.

y. Brady, 190.

V. (^hurton, 110, 527.

y. City of Findley, 174.

V. CroBwell, 5.'ii^.

V. Dickinson, (502.

V. Hatch, 6(58.

V. James, 602.

V. Joslln, 323.

T. Pickering. 668.

V. Quartermaine, 201, 023. 076.

y. Queen, 110.

y. Railroad Co., 104. 207, 300, 310,
358, 635. 640, 859, 970, 995,
1022, 10(58, 1091. 1003.

y. Rumsey, 342, 400, 478, 484.

y. Smith, .503, 617.

V. Sorrell, (584.

y. Telogi-aph Co., 939.

V. Werremeyer, 213.

y. Western Union T.'l. (^o.. 145. 87(L

y. Winchester, 853. 90(5.
Thomasson y. Agnew, 55.
Thompson y. Albright, (5(53.

y. Beacon Val, Rubber Co., 620.

y. Bell, 260.

y. Burhans, (5.58.

y. Central Railroad & Banking Co.,
1055.

y. Clendening. 460.

y. Crocker, 781.

y. Dickinson, 917.

V. Dodge, 877.

1238

CASES CITED.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Tliompson v. EiiKle, (>92.

V. Gatlin, (J07.

V. (Jibson. 410, 795.

V. (iregory, 36.

V. Halbert, 342.

V. .lackson, 130.

V. .)oliD8ton Bros. Co., 904.

V. Lacy, 901.

V. LIbby. 20(5.

V. I.umley, 629.

V. Manhattan Ry. Co., 10J)2.

V. National Exp. Co., 878.

V. I^ennsylvania II. Co., 141, 144.

V. Phoenix Ins. Co.. 581.

V. Pioneer I'ress Co., 510, 522.

V. Price, 611, 620. 026.

V. Richardson, 617.

V. Rose, 728.

V. Ross, 4.")2.

V. State, 131.

V. Whipple, 121. 211. 424.

V. White, 553.

V. Young. 204.
Thompson-Hutchison BUlg. Co. v.

Mayer, 241, 243.
Thompson's Case. 115, 116.
Thomson v. Gortner, 717.
Thorbum v. Smith, 255.
Thoresen v. I^ Crosse City R. Co.,

861, 879.
Thorington v. Smith, 1063.
Thorley v. Lord Kerry, 491, 492. .122.
Thorley's Cattle-Focnl Co. v. Mai^sam,

.151.
Thorn v. BlaucliaiHl. 528.

V. Maurer, 667.
Thome v. Moser. 481.

V. Tilbury, 713.
Thornton v. Marshall, 614.

V. Roll, 692.

V. Thornton, 56.
Thorogood v. Bryan, 980 982, 984.

V. Robinson, 708, 728.
Thoroughgood's Case. .199.
Thorp V. Burling. 286.

V. Minor, 278. 880.
Thorpe v. Brumfitt, 798.

V. Missouri Pac. Ry. Co., 942.

V. New York Cent. & II. R. R.
Co., 241.
Thduron v. Railway Co., 134.
Tin-all V. Knapp, 445.

Threefoot v. Nuckols, 620.
Thurljer v. Sprague, 315.
Thurst V. West, 721.
Thurston t. Blanchard, 728.

V. Hancock, 79. 9Q, 75L

V. Martin, 401.

V. Prentiss, 349.

V. Wright, 615.
Thyng v. PItchburg R. R., 994, 1053.
Tibbetts v. Knox, 236.
Tice V. Munn, 377.
Tidd V Ovorell, 337.
Tidman t. Ainslie, 548.
Tiei-ney v. Chicago & N. W. R. Co.,

887.
Timo y. McCormack, 840.
Tlfft V. Tlflft. 100.
Tift V. Jones, 185.
Tightmeyer v. Mongold, 41, 297.
Tillett V. Lynchburg & D. R. Co., 9&1.

V. Ward. 678. 855.
Tillinghast y. McLeod. 542. 543.
Tillman y. Fletcher, 132.
Tlllotson y. Cheetham, 455, 400, 484.
Timlin v. Standard Oil Co.. 225, 226.
Timm V. Michigan Cent. R, Co., 909.
Timmis V. JVade. 591.
Timothy T. Simpson, 427. 441.
Tindley v. Sr.lem. 187.
Tingle V. Chicago. B. & Q. Ry.. 194.
Tinker v. New Yoi-k, O. & W. R. Co.,
279.

V. Pool, 718.
Tlsdale v. Kingman. 610. 629.
Tissot V, Great Southern Telegniph

& Telephone Co.. 143, 863.
Titus y. Bradford, B. & K. R. Co.,

332.
Tobey v. Smith, 221, 222, 731.
Tobias v. Hariand, 553.

V. Michigan Cent. R. Co., 8(;2, 9(U.
Tobin V. Deal. 654, 718.

y. Kirk, 15.

V. Missouri Pac. Ry. Co., 987. 989.

V. Omnibus Cable Co., 975. lOJKJ

V. Western Union Tel. Co., 304,
910.
Todd V. Cochell, 872.

V. Dun, 540.

V. Flight, 226, 2*20.

y. Hawkins, 542.

y. Jackson, 669. 688.

CASES CITED.

1239

[Vol. 1 ooinpriseA pnfTos 1-652, Indus! ve; vol. 2 the residiu'.]

Todd V. Railway Co., 301. 37'J.

V. Rowley, 8o7.
Tosnini v. Kyle, 055.
Tolehester Beach Imp. Co. v. Stelii-

meier, 243, 424.
Toledo, A. A. & N. M. Ry. v. Penn-
sylvania Co., 358, 043. VA(\. <U0.
Tole<lo, P. & W, R. Co. v. Conroy.

1080.
Toledo, St. L. & K. C. R. Co. v. Bai-
ley, 851. 875.

v. Burgan, 808.

V. (.^onroy, 237.

V. Cosand, 800.

V. Crittenden, 828. 083,

V. Cupp, 028.

V. Fenatemaker, 800.

V. Fly. 028.

T. Ilauck, 805.

V. I^oop, 070.

V. Tapp, 1070.

V. Trimble. 1023.

V. WIngate, 0(M, 1003.
Toledo, W. & W. Ry. Co. v. B«'ggs,
101.

y. Brooks, 101.

V. (Jrable, 084.

v. Harmon, 204.

V. Ix)ckhart. 1008.

y. Maxfleld, 065.

V. O'Connor, 067.
Tolmau v. Abbot. 1072.

V. Syracuse, B. & N. Y. R. Co.,
043.
Tombs y. Painter. 431. 433.
Tome V. Dubois, 710.
Tomle V. Hampton. 078.
Tomlinson v. Derby, 400.

y. Town, 380.

y. Warner, 007.
Tom Lysle. The. 875.
Tompkins y. Railroad Co., 34.').

y. Sands, 124.
Tompson y. Dashwood, 482.

y. Mussey. 628.
Tonawanda R. Co. y. M\uiger. 105.
Toncray y. Dodge Co., 134.
Tone y. Wilson, 500.
Tongue y. Nutwell, 087.
Tonnow^n v. Ross, 008.
Toogood V. Spyrlng, 530.
Toole V. Beckett. 227.

Toomey y. Delaware, L. & W. R. Co.,
617.

y. Donoyan. 910.

y. Railway Co., 402, ««.
Tootle y. Clifton, 770.
Topeka Water Supply Co. y. City of

Potwin, 180, 795. 806.
Torre y. Summers, 450.
Torrence y. Third Nat. Bank, 103.
Torriano y. Young, 697.
Torrey v. Fk^ld. 523.
Totel V. Bonuefoy, (kS3.
Totten y. Burhans, 564, 571, 579, 001.
Tottenham y. Byrne, 671.
Toudy y. Norfolk, etc., Ry. Co., 920.
Tounsell y. Smythe, 891.
Tourtellot y. Rosebrook, 843.
Touslgnant y. Iron Co., 242.
Tousley y. Board of Education, 716.
Towanda Coal Co. y. Heeman, 256.

280.
Towle y. Lovet, 739.

y. Pacific Imp. Co., 875.
Town y. Carina. 783.

V. Hazen, 708.
Towne v. Lewis, 720.

^. Nashua & L. IL R., 678.

y. Rice, 002.

y. Wiley. 150, 163.
Towner y. Missouri & P. R. Co.,

063.
Town of Albion y. Hetrick, 044.
Town of Andrews y. Sellers, ;C>2.
Town of Burlington v. Schwarznian.

807.
Town of Fowler y. LInqulst, 402. 0<vi,

965.
Town of Gosport y. Evans, 870.
Town of Marion y. Skillman, 601.
Town of MartlnsylUe v. Shirley, 7<K5.
Town of Sullivan y. Phillips, 704.
Town of Troy y. Cheshire R. R., 603.
Town of Wilton y. Town of Weston,

1 7X
Towiisend y. Brlggs, 402, 430.

V. C'owles, 581.

y. Hughes. 36, 403.

y. Ricli, 000.

V. Wathen, 373, 820.
Townshend v. Gray, 013. 914.
Township of Buckeye y. Clark, 207.
808.

1240

CASES CITED.

[Vol. 1 c'oniprisos pages l~4i52, inelutfiTe; toI. 2 the residne.]

Township of Hutchinson v^ Ftlk, 689,
802.

Toy V. United States Cartridge CJo..
1(M)8.

Toye V. McMahon, 488.

'i^ozor V. Child. 135.

Tracy v. Cloyd, 138.

V. Pullman Palace-Car Co., 1058.

TraflTord v. Adams Exp. Co., 334.

Traill v. Baring, 500.

Trambly v. Rlcard, 318.

Trammel v. Ruaseliville, 420.

Trammell v. Ramage, 392.

Trask v. Shotwell, 195, 3:^2.

Trauerman v. Lippencott, (>94.

Travelers' Ins. Co. v. Melick, 375.

Travis v. Barger, 458.

y. Standard Life & Ace. Ins. Co.,
423.

Traylor v. Evertson, 404.
V. Horrall, 723.
V. Hughes, 724.

Treadwell v. Whittler, 002, 938.

Treanor v. Manhattan Ry. Co., 837.

Treasurer v. Cleary, 113.

Tremain v. Cohoes Co., 772.

Trent Nav. Co. v. Wood, 1062. -

Ti-esca v. Maddox, 488.

Trevllian v. Pyne, 009.

Trlhble v. I^ird, 710.

Tribette v. Illinois Cent. R. Co., 845.

Trice V. Cockran, 559.

Trigg V. Railway Co., 370, 377.

Trimble v. Anderson, 494.

Trinity County Lumber Co. v. Den-
ham. 1011.

Trinity & S. Ry. Co. v. Lane, 228.

Tripp V. Thomas, 628.

Triscony v. Orr, 707.

Troe V. Larson, 354.

Trogden v. Hcnn, 196.

Trotman v. Dunn, 5*J8.

Trowbridge v. Brookline, 758.

Trowbridge's Adm'r y. Danville
Street-Car Co., 860, 9(J7, 9<{9.

Troy y. Cheshire R. Co.. 410. 412, 693.

Troy & G. R. R. v. Commonwealth,
111.

Triuix V. Chicago, St. P., M. & O. Ry.
Co., 891.

Trueman v. Railway Co., 7S9.

Truesdell v. Combs, 122. (^Jl.

Truman v. London B. & S. C. R. Co.,

144.
Trumbull v. Gibbons. 480.
Truntle v. North Star Woolen Mills

Co.. 1006.
Trusdell v. Combs, 124.
Trussell v. Scarlett. 540, 541.
Trust Co. V. Sedgwick, 218.
Trustee of Hopkins Academy v. Dick-
inson. 759.
Trustees of First Baptist Church v.

Utlca & S. R. Co., 781.
Trustees of the Village of Delhi v.

Youmans, 557. 758.
Tryon v. Whitmarsh, 575.
Tubervil v. Stamp, 769.
Tuberville v. Savage, 432.

V. Stamp, 250, 254.

V. Stampe, 840, 841.
Tuck V. Downing, 578, 592.
Tucker v. Baltimore & O. R. Co., 933,
953, a'>8.

V. Bradley, 133.

V. Cannon. 60, 612, 617.

V. Drake, 89.

V. Illinois Cent R. Co., 839, 840.

V. Jerris, 44.

V. Moreland. 164,

V. Newman, 410, 666, 779.

V. Pennsylvania R. Co., 1068.

V. White. 563.
Tuff V. Warman, 073, 976.
Tul]ay V. Reed, 442.
Tulley V. Fitchburg R. Co., 884.
Tullidge V. Wade, 393, 455, 458.
Tunbridge Wells Dipper Case, 82, 662.
Tunney v. Midland Ry., 261, 1029.
Tunnicliffe v. Bay Cities Consol. Ry,

Co., 380.
Turber^'ille v. Stanijie, 840.
Turley v. Thomas, 877.

V. Tucker, 190.
Turner v. Craighead, 857.

V. Cross, 20(5, 207.

V. Esles, 467.

V. Estes, 466.

V. Haar, 65.

V, Hawkins, 661.

V. Hitchcock. 342.

V. Meymott, ()88.

V. Page, 131.

v. PhaMilx Ins. Co., 43.

CASEB CITED.

1211

[Vol. 1 comprises pages 1-^2, incluaye; toI. 2 the residue.]

Tamer v. Railroad Co.. 189. 8^, 027.

V. Thompson, 754).

V. Turner, (iOO, (kJ8.

V. Walker, (i21.
Turner's Case, 150.
Turnipseed v. Hudson, r>Sl.
Turnpike Co. v. Brown, 1)8.
Turnpike Road v. Cbampney, 129.
Turpen v. Booth, 117, 120.
Turpin v. Reniy, 630.
Turrill v. DoUoway, 498.
Turton y. New York Recorder, 512,

540.
Tuttle V. Church, 709, 778.

T. Railway Co., 409, 470, 472, 993.
1044.
Tweed's Case, 136.
Twigg V. Ryland, 856.
Twilley v. Perkins, 422, 632.
Twombly v. Leach, 470, 913.

Y. Monroe, 688.
Twopenny v. Young, 345.
Twycross y. Grant, 329.
TVlceson ▼• Bowman, 625.
iS^ler, In re, 113.

Y. Ricamore, 71.

Y. SaYage, 172.

Y. Western Union Tel. Co., 302,
369.
Tyler, Ullman & Co. y. Western Un-
ion Tel. Co., 307.
Tynberg y. Cohen, 628.
Tyner y. Cory, 152, 154.

Y. People's Gas Co.. 769.
Tyrell y. Eastern R, Co., 1089.
Tyrringham's Case, ()76.
Tysen Y. Moore, lOCil.
Tyson y. Booth. 390.

Y. Ranney, 001.

u

Udell Y. Atberton, 2r)S-270.

Upgla V. West End St. Ry. Co., 837,

864.
Uhe Y. Railway Co., 3t53.
Ulery y. Jones, 6.59.
[■line Y. New York Cent. & H. R. R.

Co., 412.
Ulrirk y. Dakota luoan & Trust Co.,

751.

Underwood y. Green, 789.
Y. Hewson, 50.
Y. Parks, 525.
Y. Scott, 914.
Y. Smith, 35.
Union Cent. Life Ins. Co. y. Soheidler,

559.
Union Coal Co. y. City of La Salle,

689.
Union Pac. D. & G. Ry. Co. y. Wil-
liams, 362.
Union Pac. R. Co. y. ArUst, 188, 316,
914.
Y. Askew, 846.
Y. Callaghan, 68, 78, 1052.
Y. De Busk, 927.
V. Krlckson. 997, 1039, 1049.
Y. Fort, 1025.
Y. Gllland, 936.
Y. Goodridge, 1067.
Y. Harris, 1055.
Y. James, 869, 1009.
Y. Jarvl, 997, 1012,
Y. Keller, 845.
Y. Kelley, 297, 1035, 1030.
Y. Lapsley, 982.
Y. McDonald, 830, 872, 921, 922.

930, 933, 958, 988.
Y. Mertes, 871.
Y. Nichols, 191.
Y. Novak, 78, 1000.
Y. O'Brien, 1018.
Y. Porter, 927, 1084.
V. Ralney, 1065.
Y. Rassmussen, 926.
Y. Reese, 399.
Y. Tracy, 941.
Union Railway & Transit Co. y.

Shacklett, 342.
Union Stock Yards Co. of Omaha y.

Larson, 1009.
Union Stove & Mach. Works v. Cas-
well, 131.
Union St. Ry. Co. v. Stone. 211, 868.
Union Terminal R. Co. v. Board of

Railroad Com'rs, 355.
Union Trust Co. v. Illinois M. Ry. Co.,
207.
Y. Souther, 207.
Union Water Co. v. Kean, 354.
United Copper Mining & Smelting Co.
Y. Franks, 670.

1242

GASES C1T£D.

[Vol. 1 comprises iwges 1-G52, iDcIusiTe; toI. 2 the residue]

United El. Ky. Co. v. Slielton, 211.
United Laud Co. y. Great Eastern

Ry., C88.
ITnlted Society v. Underwood, 342,

•United States v. Alden, 150.

V. Appleton, 6(>1.

V. Baxter, 4G, 201, 398, 740.

V. Clarke, 110.

V. (Mune, 358.

V. Debs, 358, 745.

V. Elliott, 358.

v. Harper,' 10, 59.

V. Klrkpatrlck, 110.

Y. I^e, 110, 112. 113.

T. McDonald, 359.

V. Mock, 740.

V. Myers, 435.

V. North Blooinfield Gravel Mln.
Co., 790.

V. Palmer, 10<«.

V. Patterson, 049.

V. I'erklns, 740.

V. Saul. 847.

V. Talntor, 59.

V. Texas, 113.

V. Trumbull, 114.

V. WindRate, 740.

V. Worklngmen's Anialjja mated
Council, 649.

V. Worklniamien's Ass'n, 049.

V. Yukers, 1K)1.
United States Express Co. v. Bnckman,

3()(;.
United States Illuminating Co. v.

Grant, 783. 801.
United States Ins. Co. v. Wright, 5M:i.
T 'lilted States Ti'ust Co. of New York

V. O'Brien, 354.
I'nitus V. The Dresden, 803.
University v. Finch, l(i7.

V. Tucker, G96, 700.
Updegrove v. Pennsylvania S. V. R.
Co., 143, 200. 310.

V. Zummerman. 525.
I'pham V. CItv of Salem, 178.

V. Marsh, 689.
Upjohn V. Board, 747.
Upton V. Hume, 503, 519, 537, 547.

V. Levy. 591. 592. OUv.

V. Trlbilcock. 582.

V. Upton, 509, 510.

Upton V. Vail, 636.

Uransky v. Dry-Dock, E. B. & B. IL

Co., 471, 472.
Usell V. Hales, 532.
Utiey V. Burns. 914.

Vail V. Broadway R. Co., 1085.
V. Pacific Ry. Co., 1062.
Y. Strong, 559.
Valentine v. Duff, 73a

V. KwUeckl. 131.
Vallance v. Boston & A. R. Co., 88:2.

928, 931.
Vallery v. State, 538, 546.
Vallo V. United States Kxp. Co., 151.
Van Aernam v. MeCune, 169.
Van Ankin v. W'estfaU, 525.
Van Arnam v. Ayers. 468.
Van Bergen v. Van Bergen, 802.
\'an Bibber v. Hilton, 756.
Vance v. Erie R. Co., 169.
Vanderbuilt v. Richmond Turnpike Co.,

255.
Vanderburgh v. Bassett, 710.

V. Truax, 71, 74. 76.
Vandersllce v. Newton. 809.
Van Derveer v. Sutphln, 519, 547.
Vandervelden v. Chicago & N. W. R.

Co., 317, 319, 320.
Vanderwiele v. Taylor, 81^.
Van Deusen v. Young, 694, 702. 703.
Van De Vere v. Kansas City, 783.
Vandewater v. New York & N. E. R.

Co., 882, 925.
Vandiver v. Pollak, 216.
Van Dusan v. Grand Trunk Ry. Co.,

1086.
Vanduzor v. Llnderman, 624.
Van Dyke v. Cincinnati, 99, 919.
Vane v. Barnai'd. 703.
Van Epps v. Harrison, 578.
Vanesse v. Catsburgh Coal Co., 997.
Van Hoosear v. Town of Wilton, 175.
Van Hoozier v. Hannibal & St. .T. li.

Co., 410, 412.
Vanhorn v. Burlington, C. R. & N. Ry.

Co., 197.
Van Horn v. Van Horn, ;«6, 339, 47S.

540. 637, 639, 645, 646, 651.

CASES CITED.

1243

[Vol. 1 comprises pages 1-4^2, inclumve; vol. 2 the residue.]

Vanlt'er v. Earle. 559.
Van Leuven v. Lyke. (JOO, 0(53, a*)5.
Vann v. McCreary, 022.
Vaiinenian v. FowenSt 222.
Van Xorden v. Robinson, 747.
Vail Ollnda v. Hall. 4<:8.
Van Pelt v. Chattanooga, R. & C. R.
Co.. 30.

V. DaveniK)rt. 170, 180.

V. McGraw, 7(M.
Van Rensselaer v. Dole, 480, 504.
Van Slyk v. Trempealeau, etc., Co., 119.
Van Slyke v. Insurance Co., 123.
Van Steenl>ergh v. Bigelow, 120.
Van Steinburg'8 Case, 903.
\ an 'nissell v. Hospital, 188.
Van Tuyl v. Rlner, 553.
Van Vactor v. McKillip, 465.
Van Valkenburg v. Thayer, 723.
Van Vechten v. Hopkins, 510.
>'aa Velsor v. Seeberger, 601.
Van Wagonen's Will, In re, 119.
Van Wegenen v. Cooney. 80(».
Van Winkle v. Chicago. M. & St. P. R.
Co., 1010.

V. Insurance Co., 895.
Van Wyck v. Aspinwall, 530.
Vary v. Thompson, 7tfi>.
Vaspor V. Edwards, 077.
Vasse V. Smith, 159, 102, 163.
Vaughan v. Menlove. &5, 769, 841, 842.

V. Taff Vale R. Co., 78, 141, 143,
791, 836, 844.

V. Watt, 728.
Vaughn v. Congdon, 122, 420. 520.
Veasey v. Doton, 599.
Vedder v. Vedder, 410.
Veghte V. Raritan, etc., Co., 080.
Velsian v. Lewis, 727.
Venables v. Smith, 241, 278.
Veneman v. Jones, 422.
Vennum v. Huston, Gl.'i, 014, 025.
Verder v. Ellsworth, 801.
Vere v. Lord Cawdor, 350.
Verhein v. Schultz, 320.
Vei holf V. Vanhouwenlengen, 405.
Vermont Cent. Ry. Co. v. Baxter, 237.
Verner v. Alabama G. S. R. Co., 197,
825, WH5.

V. Sweitzcr, 309. 1057.
Vernol v. Vernol, 592.

Verplanck ▼. Van Buren, 638.

Verry v. Watkins, 459.

Vertress v. Newport News & M. V. li.

Co.. 190.
Vertue v. Beasley, (WO.
Vicars v. Wllcmks, 70. 374, 377, 385,

490. 554.
Vick V. Railway Co., 201.
Vickers v. Stoneman, 480, 510, 521.
Victor V. Pennsylvania R. R., 9(U.
Victor CJoal Co. v. ^luir, 990, 997.
Victorian Ry. Comers v. Coultas, ;W8.
Victor Mln. Co. v. Morning Star Min.

Co., 752.
Vidalat v. City of New Qrleans. (J06.
Vlele V. Gray, 5:«.
Vigilancia, The, 1006.
Village of Carterville ▼. Cook, (W.
Village of Clayton v. Brooks, 871.
Village of Dwight y. Hayes, 683, 80(;.
Village of Gibson v. Johnson, 178.
Village of Oak Harbor v. Kallager,

178.
Village of Pine City v. Munch, 791.
Village of Sheridan v. Hlbbard, 381.
Villers v. Monsley, 490.
Vinas V. Merchants* Mut. Ins. Co.,

109.
Vincent v. Steinchour, 813.
Vine V. Saunders, 217, 222.
Vinton v. Schwab, 933.
Virdin v. Stockbridge, 317.
Virginia v. Tennessee, 113.
Virginia Ehrman, The, 214.
Virginia M. R. Co. v. White, 19S.
Virginia & T. R. (^o. v. Sayers, 30.">.
Virgo V. Virgo, 325.
Vittum V. Gilman, ;j:U).
Vocht V. Kuklcnce, 220.
Vocgeli V. Pickle Co., 253.
Voell V. Kelly, 319.
Vogel V. City of New York, 2:M5.
V. (rriiaz, 520, 530.
V. McAuliflfe, 245.
Volkmar v. Manhattan Ry. Co., SW).
Voltz V. Blackmar, 440.
Von Hoffman v. Kendall, 695.
Voorhis v. Olmstead. 2 U).
Vosbmg V. Putney, 72, 370, 4:58, 947.
Vosburgh v. ^loak. (»S2.
Voss V. Bassett, 738.

1214

£VoL 1 comprliM'tf pa^es 1-^2. indoflTe: toL 2 the residoe.]

Vos^sH T. Col«». ^il, 453.

V<M9S4*D r. Dautel, 1.jU.

yre«4aDd T. Cbicago. M. & S$t. P. Ry.

W

Wabash Printiujj & Pub. Co. t. Cnim-

rioe. 518, 511^.
Wabaisb K. <*o. v. Brown, 2ktL
V. Ferriji, iKiH.
T. 8ava«e. :^*K
T. WUliaiiuK>n, lUTl.
Wabawh, 8t, L. & P. Ry. Co. t. Far-
ver, 2X1.
V. lAK'ke, 48, (w. m. HIT, ?vs«, «S1.
1010.
Wabash WeHtern Ry. Co. v. Fried-
man, :iS!K 402.
Wacek v. FYink, 133, ««.
Wachaniuth v. Martini, 563, 5<VH. 572.
V. Merchante' Nat. Bank, 108, 42:j,
425.
Wachtel v. Noah Widows & O. B.

Soc., 148.
Wade V. lA*roy, 384.
y. Railroad Co., 363.
V. Tntton. 20.
V. Thayer, 2(53.
WadK worth v. (Joree, 353, 705.

V. Tillotson, 754.
Wadswoi-th Board of Works v. Unit-
ed Tel. Co.. (501.
Waffle V. New York (Vnt Ry., 763.
WaKfiponer v. Jermaiue, 745, 796.
Wagner v. H. W. Jayne Chemical Co.,
1017.
V. Jacoby, 404.
V. Saline (^o. Progress Printing

Co., 480.
V. Swift'H Iron & Steel Works, 20(5.
Wagoner v. Wagoner, ;r>4.
Wagstaff V. SchipiH'l, OIU.
Wahle V. Reinbach, 708.
Wainford v. Ileyl, 217.
Walte V. Northeastern Ry. Co., 981.
Waixel V. Harrison, S.")l.
Wakefield v. Duke of Biiecleuch, 753.
V. Newell, 704.
V. Newport, 1S2.
Wakelln v. I^ondon & S. W. Ry. Co.,
930, 942, 950, 900.

Wakely t. Hart, 428.
■ Wakeman t. DaUey. 590.

T. Robinimn, 18. irK iUTA, 87S.
Wakley t. Cooke, 523.
Walbert T. Trexler, 9U2.
Wald T. Railroad Co., lOTa
Waklrun t. Waldron, 4<>Nw
Waklnip T. Almand, 132.
Wales r. Miner, 465, 400.
' W alford t. Herald PrinUng & Piib.
Co., 524.
Walker t. Anglo-American Mortg. St
Trust Co., 5»L

T. Brewster, 777.

V. Chester Co., 94:«.

V. City of Vicksburg, 976.

T. Cronin. 450, 635. 613, 645, 647.

V. Cruikshank, OCM, 625.

T. Daris, l.V.>.

T. Emerson. (Sll.

V. Erie R. Co., 40a

T. Pitts, 200.

V. Goe, 186.

y. Hallock, 1*20.

y. Hannibal & St. J. R. Co.. 211.

V. Hawley, 501. 530.

Y. Hoeffner, 482.

v. Johnson, 253.

V. People, 10.

V. Pogue, 340.

Y. Redington Lumber Co.. 870.

V. St. Paul City R. ( o., 32*

V. Second Ave. Ry. Co., 4(52.

V. Southeastern R. Co., 169, 254.

V. Town of Reidsville, 870.

V. Tribune Co.. .•>07.

V. Trust (^o., 29:^.

V. Wetherbee, 151, 7.m

V. Winstanley, 8J>1, 81)7.

V. W^onderlick, 132.
Walkley v. Bostwlek, 552.
Wall, Ex parte, 121.

V. Des Moines & N. W. Ry. Co.,
920.

V. Pittsburg Harbor Co., 093.

V. State. 441.

V. Toomey, 609.

V. Trumbull, 118, 120.
Wallace v. Canaday, 901.

V. Central Vt. R. Co.. 809.

V. Chicago. St. P., M. & O. Ry.
Co., 590.

GASES CITED.

124.3

[Vol. 1 comprises pages 1-652, inclusiye; yoI. 2 the residue.]

Wallace v. City A. Suburban liy. Co.,
198.

V. Clark, 400.

V. Clayton, 10C2.

V. C^olumbia & G. R. Co., 754.

V. Fletcher, 792.

V. (Joodall, (JIM.

V. Hiillowoll, (J02.

V. Moras, 101.

V. New York. 397.

V. Rodgers, 491.
Wallard v. Worthman, 654.
Waller v. Bowling, 728.

V. Loch, 531.

V. Parker, 2a'*.
Wallingford v. Columbia & G. R. Co.,

1074.
Wain V. Beaver, 917.

V. Wain, 315.
Walpole V. Carlisle, 917.
Walsh V. City of New York. 127.

V. Fitchburg R. Co., 830.

V. Hall, 590, 598.

V. Morse, 504.

V. New York & N. E. R. Co., 104.

V. Peet Valve Co., KKK*.

V. St. Paul & D. R. Co., 1022.

V. Sayre, 913.

V. Trustees, 126, 127, 138.

V. Whiteley, 995.
Walsham v. Stainton, 0:iS.
Walter v. Sample, 621.

V. Selfe, 767, 709, 7S0. 781.
Walters v. Philadelphia Traction Co.,

1081.
Waltham v. Mulgar, 249.
Walton V. Booth. 907.

V. Bryn Mawr Hotel Co., 839.

V. Perkins, 554.

V. Pollock, 673.

V. United States. 112.
Wampach v. Railway Co.. 367.
Wanamaker v. City of Rochester, 937.
Wandell v. Edwards. 459.
Wansbrougb v. Ma ton. 723.
Wanzer v. Self. 320.
Warbowlsky v. Vt. Wayne & E. Ry.

Co., 1093.
Warburton v. Great Western Ry. Co.,

1034.
Ward V. Atlantic & P. Tel. Co.. 180.

v. Blackwood, 381.

V. Blake Manuf'g Co., 548.

Ward V. Carp River Iron Co., 704.

V. Conatsor, 155-157, 159.

V. County of Hartford, 183.

V. Dean, 497, 548.

V. Freeman, 118.

V. Ilobbs, 9. 578, 580.

V. Luneen, 568.

V. McCauley, 604.

V. Neal, 750.

V. New England Fibre Co.. 241.

V. Railway Co., 192, 092, 842, 802,
8S2. 88:^. 947, 972.

V. State, 449.

V. Taylor, 004

V. Warner, 093.

V. White, 440.
Warden v. Foadick &, Davia. 85.
Warden v. Greer, 1001.

V. Sweeney, 366.
Warder v. Bowen. 589.
Warder, Bushnell & Glessner Co. t

Whitish, 590.
Ward's Adm'r v. Chesapeake &, O. R.

Co., 954. 957.
Ware v. Brown. 905.

V. (iay, 1085.

V. Johnson, 058.

V. St. Paul Water Co.. 232.
Warmlngton v. Atchison. T. & S. F.

Ry. Co., 1050.
Warmouth v. Cramer, 482.
Warn v. New York Cent. & H. R. R.

Co., 1001, 1009.
Warner v. Chamberlain. 370, 850.

V. Clark. 387. 488. 543.

V. Iris wold, 292.

V. Jkllller, 4(i8.

V. Moran, 221.

V. Paine, 528.

V. Press Publishing Co.. •518.

V. Riddlford. 421.
Wamick v. Baker. 707.
Waniock v. Mitchell. 478. 480-482.
Warren v. Banning, 200.

V. Cavanaugh, 804.

V. Dwyer, 707.

V. Euglehart. 334.

V. State, 432.

V. Warren, 94, 408.

V. Westrup, 214. 215.
Wairen Bank v. SulTolk Bank,

28o.
Wartman v. Swindell. 00, 300.

1246

CASES CITED.

[Vol. 1 comprises pn^os 1-<m2, iuehiKive; toI. 2 tho rpsiilue.J

WuHco. The. KWl.
Washburn v. Cooke, 543.

V. Cutter, 709.

V. Insurance Co.. 323.

V. Mendeuhall, 707.
Washington v. Baltimore & O. U. Co.,

872.
WoBhiUKton C. & A. Turnpike Case,

S)44.
Washington & G. U. Co. v. Gladmon,
059.

V. Harmon's Aclnfr, 380, 953, 101)0,
1093.

V. McDade, 953, 95?), 995, 1010,
1044.

V. Tobrlner. JM2.
Wasner v. Delaware, L. & W. R. Co.,

(»2C.
Wason, E.K parte, 529.

V. Walter, .529, 532.
Was8 V. Stepliens, 017.
Wasscrmau v. Louisville & X. R. Co.,

<a3.
WasKon V. Mitchell. 120. 138.
Water Co. v. Ware, 180, 232.
Waterman v. Matteson. 704.

V. Ralh-oad Co.. 381, 942.
Watere v. City of Newark. 782.

V. Greenleaf- Johnson Lumber Co.,
230, 301, 393.

V. Pioneer Fuel Co.. 228.
WaterK-Pierce Oil Co. v. Cook. 780.
Watkin v. Hall. 548.
Watkln.s v. County Court, ia*J.

V. Great Western R. Co.. 1082.

V, Peck, 759.

V. Wooley. 729.
WatUng V. Oastler, 280.
Watson V. Bauer, 935.

V. Bodell, 12:^.

V. Christie, 440.

V. Coburn, 721.

V. Freeman, 009.

V. Goodno, 714.

V. Hunter, 353.

V. Lisbon Bridge Co., 185.

V. McCarthy, 509.

V. Moore, 474.

V. Muirhead, 910, 917.

V. Poulson, 502.

y. Railroad Co., 103. 324. 801. 8S2.
940, 908. 1084.

Watson V. Reynolds. 553.

V. A'an Meto!-, 82.

V. Watson. 457, (510.
Wafters v. Smoot, 524.
Wattei'son v. Saldumbehere. 354.
Watts V. Hart, 991, 1010. 1038. 1041.

V. Kelson. f88.

V. Norfolk & W. R. Co., 302, 7.'>4.
Wattupa Reservoir Co. v. (Mty of Fall

River, 091.
Waverley Tinil»er &. Iron Co. v. St-

Louis Cooperage Co., 720.
Way v. Foster, 192.

V. Townsend, 118. 124.
Waycross Lumber Co. v. Guy, 943.
Way mouth v. Chicago & N. W. Ry-

Co., 741.
Wayne County Turnpike Co. v. Ber-
ry, 185.
Wead V. St. Johnsbury & L. C. R. Co^

763.
Wealland v. Palmer, 857.
Weare v. Fitchburg, 17G.
Weatherhead v. Armitage. 495.
Weatherston v. Hawkins, 199,^ 522,

546.
Weaver v. Bush. 660.

V. Devendorf, 117-120.

V. Hendrick, 512.

V. Iselin, 274. 462, 1023.

V. Lloyd, 523.

V. Rltter, 490.

V. Wai-d, 33. 50, 66, 155, 15(L 438,
654, 852.

V. Wible, 733.
Webb V. Beavan, 502, 678.

V. Bird, 750.

v. Fox, 711.

V. Portland Manuf'g Co.. 70,. 704,,
755, 806.

V. Railroad Co., 841, 1037.
Webber v. Davis, 717.

V. Nicholls, 628.
• V. Quaw, 653.

V. Vincent, 545.
Weber v. Couch, 315.
Weber Co. v. Chicago, St. P.. ^I. &

O. Ry. Co., 1077.
Webster v. Bailey, 589. 593.

V. Fitchburg R. Co., 1082. lOvSa

V. Fowler, 622.

V. Hudson River R. Co., OS.

CASES CITED.

1247

[Vol. 1 comprises pages l-(i7}*2t iDcluHiTe; toI. 2 the residue.]

Webster v. Watts, 428.

V, Webster. 701.
Weckerly v. Geyer, 135.
Weckler v. First Nat. Bank, 171.
Weclgewood v. Baily, 104.
Weed V. Ballstou, 129.

V. Saratoga & S. Ry. Co., 1077.
Weedon v. Timbrell, 4«5, 4GiJ.
Weet V. Brockport, 177.

V. Trustees, 177, 184.
Wohmann v. Hallway Co., 30S, 1071,

1072.
Weick V. Lander, 78, 375.
Weldenian v. Tacoma Ry. & Motor

Co., 839.
Weidner v. Rankin, 335.
Weigh tman v. Louisville, X. (). & T.

Ry. Co., 1001.
Weil V. Altenhofen, 49G.

V. Israel, 527, 621. 031.

V. Schultz. 778.
Weiller v. Pennsylvania R. Co., »H».
Weintz V. Kramer, 134.
Weir V. Bell, 270, 501, 567.

V. Plymouth Borough, 301.
Weiser v. McDowell, 3;i0.
Weiss V. Pennsylvania R. Co.. 035.
Welssner v. St. Paul City Hy. (^o., 988.
Weitner v. Delaware & H. Canal Co.,

isa.

W\Ai'h V. Bowen. 96.

V. Cheek, 012.

V. Durand, 33. 50.

V. Jugenheimer, 935.

V. Railroad Co., 301.

V. Tribune Pub. Co., 484.

V. Ware, 406.

V. Wesson, 192, 972.

V. Whittemore, (J56.
Wold V. Brooks. tiSO.

V. Gas Light Co., 1S(J, 772.

V. New York, L. E. & W. R. Co.,
471.

V. Oliver, 733.

V. Prctprletors of Side Booms. 170.
Weldon v. De Bathe, 219.
Welfare v. London & B. Ry. Co.. 2J(J.

8;ii;, mo.

Welker v. Butler, 497.
^Welles V. Northern Cent. Ry. Co., 921.
Wellington v. Downer Kerosene Oil
Co., 378, 577, 847.

Wellington v. Jackson, 47.

V. Moore, 302.

V. Small, 88, 639, (^9.

V. Wentworth, 72:i
Wellman v. English, 133.

V. Sun Print. & Pub. Co., 486.
Wells V. Abrahams, 11.

V. Kelsey, 729.

V. Maine Steamship Co., 1065^

V. New Haven & N. Co., 405.

V. Ody, 750.

V. Washington Market Co., 424.

V. Watling, 82.
Welsh V. Bell, 602.

V. Cheek, 004.

V. Lawrence, 878.

V. Parrish, 228, 241.

V. Pittslmrgh, Ft. W. & C. R. Co.,.
1005.

V. Wilson, 131, 674.
Welter v. City of St. Paul, 176.
Welty V. Indianapolis & V. R. Co., 165,.

873.
Welz V. Rhodius, 584.
Wendell v. Baxter, 186.

V. Johnson, 6(»2.
Wendtlandt v. Cavanaugh, 412, 744.-
Wenman v. Ash, 480.
Wennhak v. Morgan, 480.
Wenona Coal Co. v. Holmqulst, lOAJ.
Wentworth v. Jefferson, 192.
Werner v. Flies, 694.
AVert V. Strouse, 452.
Werth V. City of Springfield, 178.
Wertz V. W. U. Tel. Co., 304.
Wesley v. Railway Co., Hi^i.
Wess-els V. Beeman, 712, 738.
Wesson v. Washbuni Iron Co., 779.

782, 787, 808.
West V. City of Eau Claire, 178
966.

V. Emery, 559.

V. Forest, 382.

V. Hanrahan, 499.

V. Hayes, 610.

V. Moore, 159. 164.

V. Xibbs, 680.

V. Railway, 237, 801.

V. Shockley, 44.

V. Smallwood, 423, 005.

V. Wentworth, 739.

V. A\' right, 505.

1248

CASES ar£D.

[Vol. 1 comprises pages 1-052, inclusive; vol. 2 the residue.]

Westaway v. Chicago. St. P.. M. & O.

Ry. Co.. 881.
Westbourne v. Barwith, 412.

V. Mordant, 412.
West Branch Boom Co. v. Pennsyl-
vania Joint Lumber & Land Co., 027.
West Chester & P. R. Co. v. Miles,

371.
West Chicago St. Ry. Co. v. Martin,

1085.
Westcott V. Central Vt. R. Co., 333.
V. Fargo, 'Si)'}.
V. Sharp, 27, 207.
West Cumberland Iron Co. v. Ken-
yon, 834.
Westerfleld v. Levis, 2G7.
Western Bank of Scotland v. Addie,

168, 109, 260, 558, 506.
Western College v. Cleveland, 175.
Western Counties Manure Co. v.

Lawes Manure Co., 550, 532.
Western Counties Ry. Co. v. Windsor

& A. R. Co., 141.
W^estern Granite & Marble Co. v.

Knickerbocker, 750.
Western Manure Co. v. Lawee Chem-
ical Co., 85.
Western Ry. Co. v. Harwell, 307, 1072.
Western Ry. of Alabama v. Mutch,

102.
Western Stone Co. v. Whalen. 009.
Western Transp. Co. v. Newhall, 303.
Western Union Tel. Co. v. Arwine,
309.
V. Bates, IKK).
V. Crall, 307.
V. Eyser. 145.
V. Fore, 000.
V. Hall, 370, 900.
V. James, 306. .307.
V. Kelly, 223.
V. Linn, 302, 369.
V. Longwill, 307.
V. Jjowrey, '?04.
V. Lyman, 3(U.
V. McGill, 334.
V. Moyle, 337.
V. Finer, 307.
V. Satterfleld, 247.
V. Stevenson, 301.
V. Timmons. 000.
v. Watson. 379.

Western TTnion Tel. Co. v. Wood, 3ti5l.

00 V
WestiTU & A. R. Co. v. Roberson. 97.

061.
Westervelt v. Demarest, 582.
Westfleld Gas & Milling Ca t. Aber-

nathey, 212.
West Jersey R. Co. v. Camden, G. &

W. Ry. Co., 786.
Westlake v. Westlake, 468.
West London Com. Bank v. Kitson,

582.

West Point Iron Co. v. Reymert, 682.
West Side Bank v. Meehan, 353.
Westwood V. Cowne, 386, 387. 382.
Wetherbee v. Green, 395, 740.
Wetmore v. Mellinger, 608.

V. Tracy, 800.
Weymouth v. Chicago & N. W. Ry.

Co.. 713.
Whalen v. Baker, 464.

V. Centenary Church, 1047.

V. Citizens* Gas Co., 954.
Whalley v. Lancashh*e Ry., 763.

V. Pepper, 004, 625.
Wharf V. Roberts, 597.
Wharton v. Stevens, 754, 762.
What Cheer Coal Co. v. Johnson.

1048.
Whatllng V. Nash, 662.
Whatman v., Pearson, 258, 260, 261.

278.
Wheatland v. Pryor, 285.
Wheatley v. Baugh, 557, 758.

V. Chrisman, 753, 754.
Wheatly v. Patrick, 243.
Wheaton v. Beecher, 522, 537.

V. Peters. 92.
Wheelahan v. Traction Co., 883.
Wheeler v. Baars, 270, 596.

V. Berry, 1019, 1025.

v. Gavin, 426.

V. Hanson, 618, 628, 629.

V. Lawson, 713.

V. New York Cent. & H. R. R.
Co.. 844.

V. Oceanic Steam Nav. Co., 90;i

V. Pereles, 738.

V. Wheeler. 733.

V. Whiting, 428, 441.
Wheeler & W. Manuf'g Co. ▼. Boyce,
403.

CASES CITED.

1249

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

Wheeler & W.Manurg Co. v.HeU,2iy.

v. Jacobs, 150, 163.
Wheelock v. Wheelwright, 730.
Whelan v. New York, L. E. & W. R.

Co.. 1)28.
Whetmorc v. Tracy. 801.
Whigham v. Davis, 354.
WhUton V. Richmond & D. R. Co., 97.
Whipple y. Cumberland Manufg Co.,
401.

V. Fuller, 600, 628.

V. Walpole, 397.
Whlrley v. Whlteman, 830.
Whitaker v. Cawthorne, 684.

v. President, etc., of Delaware &
H. Canal Co., 1051.
Whitcher v. Hall, 366.
Whitcomb V. Joslyn, 164.
Whitcomb's Case, 115.
White y. BaUou, 944.

Y. Barnes, 203.

V. Bayley, 665.

V. Boulton. 1083.

V. Campbell, 353.

V. Carr, 622.

V. Carroll, 56, 528.

V. City of San Antonio, 175.

T. Commissioners, 183.

V. County of Bond, It^

V. Cutler. 702.

V. Dresser, 781.

V. Duggan, 513.

V. Elwell. 685.

V. Fort, 12.

y. Garden. 726.

V. Gregory, 457, 460.

v. Inhabitants of Phillips ton, 284.

V. Jameson. 226.

y. Kellogg, 443.

y. Kennon, 991.

y. McQueen, 429.

y. Maxey, 333.

y. Morse, 119.

y. Mosely, 379.

y. Mowbray, 600.

y. Murtland, 452. 458, 460.

y. Nellis, 453, 458.

y. NichoUs, 491, 512, 513, 530, 543.

V. Phelps, 733.

y. Phllbrlck. 342, 721.

y. Phillips, 280.

LAW OF TORTS— 79

White y. Railway Co., 103, 313, 683,
004, 906, 1019.

y. Ross, 466, 467.

y. Shradski, 613.

V. Washington, 916.

V. Western Union Tel. Co.. R',)9.

V. Winnlsmmct Co., 977, 10o6.

y. Wittemann Lith. Co., 1004,
1019.
Whiteford y. Henthom, 607.
Whitehead y. Greetham, 017.

y. Hellen, 37.
Whitehouse y. Fellowes, 37, 145, 335.
338.

V. Railroad Co., 142, 143.
Whiteley y. Adams, 531, 543.
Whitenack y. Philadelphia & R. R.

Co., 795. 796.
Whiteside y. United States, 110.
Whitewater Valley Canal Co. y. Com-

egys, 705.
Whitfield y. Lord Le Despencor, 137.

y. South Eastern Ry. Co., 169.
Whitford y. Panama R. Co., 330.
Whitham y. Kershaw, 16, 361.
Whiting y. Hill, 591, 592.

y. Johnson. 605.
Whitlock y. Commonwealth, 914.

y. Consumers' Gas Trust Co., 691.
Whitman y. Merrill, 672.
Whitmore y. Bischoflf. 411.
Whitney y. Backus, 211, 680.

y. Bartholomew, 777, 778.

y. Clifford, 935.

y. Dutch. 160.

y. Elmer, 452.

y. Hitchcock. 459.

y. Martine, 917.

V. Peckham, 618.

y. Preston, 132, 724.

y. Slauson. 727.

y. Union Ry. Co., 795.
Whittaker v. Bradley, 505.

y. City of Plelena, 982.

V. Collins, 23, 24, 20, 2t)3.
Whittemore y. Oil Co., 346.

y. Thomas. 856.
Whlttier v. Collins, 297.
Whittiker y. Forbes, 103.
Whittington v. Boxall, 669.

y. Gladwin. 506.

12o0

CASES CIT£D.

[Vol. 1 eomprisf^s pa^oB 1-C52, inclusive; vol. 2 the residne.]

Whitson V. May. (108.
Wbltworth V. Dorblshire, 808.

V. Hall, <K)«. OlO.
Wb3'te V. Kysden. 2.
Wichtrecht v. Fasnacht. 243.
Wlckei-Klmm ▼. Oit, imi
Wkkes V. Clutterbuck. 122.
WldrlR V. Dyer, 5(W.
Wleman v. Mabw, 52S), TkJO.
Wier V. Allen, TwiC).
Wier's Appeal, 775, 778.
Wiffln V. Klnard, 4:58.
Wlggett V. Fox, 281, 1036.
Wiggln Y. Coffin, 401.
Wiggins V. Ilatbaway, 138.

V. United States, 45.
Wiggins Ferry Co. v. Cbicago & A. R.

Co., 303.
Wigmore v. Jay, 1029.
Wigsell V. School. 16.
WUbraliani v. Snow, 712.
Wilbur V. Turner, 211, 080.
Wilburu V. St. I^uls, I. M. & S. R.

Co., 10»1.
Wilcox V. Cate. 297.

V. McCoy, 858.

V. Moon, 480, 481, 510. .'>12.

V. Plummer's-Ex'rs, 330.

V. Railroad Co., 371, 02!K
Wild V. CMty of Paterson, 174.
Wilde V. Gibson, 5(50.

V. Hexter, 743.

V. Waters, 078.
Wildee v. McKee. 038.
Wilder v. DeCou, 504.

V. Holden, 021.

V. Hnbbell, 290.

V. Stanley, 09, 74.
Wilds V. Bogan, 459.

V. I^yton, 7(K).
AVild's Adm'r v. Ilud.«ion River R. Co..

951.
Wiley V. Keokuk, 430.

V. Logan, 28:i.

V, Railway Co., 72.
Wllford V. Berkley, 401.
Wilkes V. Hungerford, 9.

v. Jackson, 342.
Wilkie V. Bolster, 1085.
Wilklns V. Burton, 007.

V. Earle, 902.
Wilkinson v. (Jonnell, OOi.

Wilkinson v. Detroit Steel & Spring
Works, 234. 83&.

v. Haygarth, 668.

V. King, 722, 724.

V. Klrby, 687.

v. Verity, 338.

V. Wilkinson, 702.
Will V. West Side R, Co., 832, 801.
Williamson v. Sheldon Marble Cu..

1023.
Wlllans y. Taylor, 623.
Wlllard V. Holmes, 4<r2, 009, 017.

V. Mellor, 473, 480.

T. Swansen, 978.
WUldlgg V. City of Brooklyn, 937.
Wllletts V. Railroad Ca, 157.
Wllley V. Carpenter, 203, 444.

V. Hunter, 808.

V. iJiraway, 607, 673. t!99.
Willi V. Lucas, 211.
William Branfoot, The, 403, 939.
Williams V. Archer, 721.

V. Cameron, 155.

V. Car Co., 277.

V. Chicago Herald Co., 496.

V. Churchill, 1022.

V. City, 870.

V. Clough, 866, 1003.

V. Davenport, 508.

V. Davis, 000.

V. Deen, 720.

V. Dickenson, 11, 040.

V. East India Co., 778.

V. Edmunds, 192.

V. Esllng, 82, 062, 689.

V. Fresno Canal & Irrigation Co.,
234.

V. Fulmer, 756.

V. Geese, 709.

V. Gibbs, 915.

V. Gilman, 949.

V. Grant, 1002, 1063.

V. Great Western R. Co., 435.

V. Grcncott, 280.

V. Hays, 155, 157.

V. Holdredge, 509.

V. Industrial School, 188.

V. James, 088.

V. Jones, 251, 254, 420, 421, 438.
841, 842,

V. KeiT, 583.

V. Ladew, 758.

CA8EB CITED.

1261

[Vol. 1 comprises pagos 1-652, iuclu&tive; vol« 2 the residue.]

WUliaui« V. Le Bar, 875.

V. McFadden, 5(kJ.

V. McGrade, G71.

V. McNeely, 35G.

V. Mercer, 132.

V. Midgett, 887.

V. Missouri Pac. Ry. Co., 1050.

V. Morland, 85.

V. Morris, 678.

V. MorrlBon, 686.

V. Mostyn, 83, 367.

V. IManters' Ins. Co., 169.

V. rowell, 632.

V. Richards, 878.

V. St. Louis & S. F. Ry. Co., 33(J.

V. Sheldon, 212, 682.

V. Smith, 41)9. 533, 717, 729.

V. Spencer, 074, 677.

V. Taylor, 611.

V. The Welhaven, 114.

V. Wood, 379.
Williams* Case, 963.
Williamson v. Bi'andenl>erg, 379.

V. Fischer, 682.

V. Freer, 481.

T. Louisville Industrial School of
Reform, 126.

V. Oleson, 761.

V. Tobey, 795.

V. Woten, 581.
WlUiamsport & Almira R. Co. ▼. Com-
monwealth, 113.
WlUlard v. Wllliard, 702.
Wlllingham v. King, 166.
Willis V. Adams, 714, 716.

V. City of Perry, 747, 759, 941.
WlUitts V. Chicago, B. & K. C. Ry.

Co., 950.
WiUmerton v. Sample. 613.
Wlllmett V. Haimer, 523.
Willmot V. Corrigan Consol. St. Ry.

Co. 1000.
Willock V. Pennsylvania R. Co., 300,

301, 1084.
Wlllson V. McEvoy. 366.
Willy V. Mulledy. 921.
Wilmarth v. Babcocli, 400.
Wllmont V. Howard, 913.
Wftms V. Jess, 753.
Wilsey v. Callanan, 807, 848.
Wilson V. Belghler, 523.

V. Brett, 817.

T. Bumstead, 335.

Wilson V. Chalfant, 686.

V. City of New York, 135, 176.

V. City of Troy, 238.

V. Clark. 241.

Y. Dondurant, 354.

V. Dubois, 554.

V. Dunville. 908.

V. Edmonds, 700.

V. Finch-Uatton, 577.

V. Fitch, 536, 537.

V. Garrard, 160.

V. Great South. Tel. & Tel. Co.,
145.

▼. Haley Hve-Stock Co., 25. 664,
670.

V. Hoffman, 709, 720.

V. Hudson River Water Power &
Paper Co.. 1043.

V. Jefferson Co., 185.

V. McLaughlin, 718.

V. Maltby, 704.

V. Marks, 522.

V. The Mary, 150.

V. Mathews, 741.

V. Merry, 1030, 1032, 1036, 1040,
1041.

V. New Bedford, 840.

V. Noonan, 491.

V. Peto, 285.

V. Peverly, 139.

V. Railway Co., 97, 261, 683, 861,
881, 929, 947, 1027, 1070, 1084.

V. Rastall, 367.

V. Reedy, 944.

V. Russ, 916.

V. Shepler, 459.

V. Smith, 19.

V. Sproul, 452.

V. Stephenson, 518.

V. Sullivan, 527.

V. Tucker, 917.

V. Tumman, 43. 44.

V. Waddell, 834.

V. AVhlte, 233.

V. Young, 131, 406.
Wilt V. Welsh, 28. 163.
WUtse V. Town of Tllden, SSS.
Wilts & B. C. Nav. Co. v. Swindon

Waterworks Co., 806.
Wlmberly v. Thompson, 127.
Wimbledon v. Dixon, 688.
Wlmer v. Allbaugh, 482.

V. Simmons, 756.

1252

CASES CITKD.

[Vol. 1 comprises pages 1-652, incInslTe; vol. 2 the residue.]

Wimer r. Smith, 582, 593.
Winbigler v. Los Angeles, 184.
Winborn v. MitcheU, 132.
Winch V. Conservators, 186.
Winchell v. Argus Co.. 494.
Winchester v. County Com'rs, 322.
Winder v. Caldwell, 399
Windham v. Wither, 343.
Wlndram v. French, 586, 591.
Windsmore v. Greenbank, 85.
Windsor v. McVeigh, 167.
Winemlller v. Thrash. 62a
Wines v. Rio Grande W. Ry. Co.,

928.
Winey v. Chicago, M. & St P. Ry.

Co.. 964.
Wing Chong v. Los Angeles, 175.
Wink V. Weiler. 261.
Winn V. Hobson, 428.

V. Rutland, 179.
Winnebiddie v. Porterfleld. 620.
Winnegar's Adm*r v. Central Passen

ger Ry. Co., 329.
Winner v. Lathrop, 913.

V. Oakhind Tp.. 472.
Winpenny v. Philadelphia, 18a
Winship V. Neale, 190.
Winslow V. Beal. 18.
Winsmore t. Greenbank, 85, 86, 466,

467.
Winston V. Young. 579. 594, 595.
Winter v. Bandel, 589.

V. Henn, 4G0.
Winterbottom v. Lord Derby, 780.

V. Wright, 281. 895. 905, 1034.
Winterbourne v. Morgan. 411, 081.
WInterburn v. Brooks. 444.

V. Chambers. 608.
Winters v. Kansas City Cable Ry.

Co., 986.
Wlntringham t. Hayes, 900.

V. Lafoy, 002.
Wlrner v. Allbaugh. 483.
Wirt V- Dlnan. 222.
Wisconsin Cent. R. Co. v. Ross. 210,

213, 203. 1071.
Wise V. Ackerman, 820, 950, 994.

V. Jeflferls, 133, 679.

V. Railway Co., 277. 280.
Wissler v. Walsh. 850.
Wiswell V. Doyle, 980. 988.
Wltham V. Portland, 175.
Wit ban v. Thomas. 017.

Witherley ▼. Regent's Canal Co., ISO.
Withers v. Henley. 418.

V. North Kent R. Co., 10S9.
Witman v. Felton. 731.
Witt V. St Paul & N. P. Ry. Co., IRfi).
Witte V. Dleffenbach. 859.
Wittingham v. Owen, 729.
Woessner v. Wells, 633.
Wohlenberg v. Melchert, 402.
Wohlfahrt v. Beckert. 907. 924.
Wolcott V. Melick, 803, 804.
Wolf V. Bauereis, 471, 472.

V. Perryman, 422. 429.

T. Shepherd, 724.

V. Western Union Tel. Co.. 306.
310.

V. Wolf, 468.
Wolfe V. Erie Tel. &, Tel. Co.. UTk
863.

T. Pearson, 48, 142.

V. Pugh, 269, 270, 639.
Wolff Manurg Co. v. Wilson, 62.
Woniack v. Fudlkar, 601, 622.
Womersley v. Church, 757.
Wood V. And. 756.

V. Braxton, C91.

V. Clapp, 912, 913.

V. Cobb, 241.

V. Graves. 133. 634.

v. Lane, 421.

V. Leadbltter, 683, 684.

V. McGrath, 804. 805.

Y. Mannley, 685.

V. Mathews, 465, 466.

V. Noack, 733. 73&

V. Panfburn, 484.

V. Philips, 331.

V. Railway Co., 255. 408. 664. 00:^.
842, 944.

V. Sutor, 605.

V. Wand, 759.

V. Wodd, 149.

V. Young, 337.
Woodard v. City of Boscobel. 381.
Woodbum v. Railway Co., 300.
Woodbury v. Short, 759.

y. Thompson, 480.
Wooden v. Western N. Y. & P. R. Co..

1038, 1044, 1045.
Wooden-Ware Co. v. United. States,.

398, 720, 740.
Woodes V. Jordan, 717.
Woodhouse v. Walker, 697.

CASha CITED.

12o3

[Vol. 1 comprises puges 1-U52, inclasiye; vol. 2 the residue.]

WoodhuU V. City of New York, 181.
Woodln V. Wentworth, 808.
Wooding V. Oxley, 428.
Wo<Mllief V. Cartels, 1059.
Woodllng V. Knickerbocker, 203. 326,

41l*J, 511.
Wowlman v. Hubbard, 1G3, 192.

V. Metropolitan R. Co., 233.

V. Tufts, 84.
Woodmansie v. Ix>gan, G08.
Woodrop Sims, The, 1085.
Woodruff V. Bowen, 839, 891, 921.

V. Bradstreet Co., 499, 510, 541.

V. Cook, 707.

V. Halsey, 664, 682.
WtMjdruff Co. V. Deihl, 1058.
Woods V. Colfax, 183.

V. Plnnell, 609.

V. Missouri, K. & T. R. Co., 930.

T. P«ngburn, 342, 484.

T. Wiman, 481, 539.
Woodward v. Aborn, 65, 759, 814.

v. Barnes, 218.

y. Glidden, 400, 430.

V. Railway Co., 333.

V. Seeley, 686.

y. Suydam, 48.

V. Washburn, 419, 630.
Woodworth v. Mills, 610, 611, 619.
Woolenslagle y. Runals, 600.
Wooley y. Batte, 216.

y. Carter, 694. •

V. Grand St & N. R. Co., 950.
Woolf V. Chalker, ir^'X
WooUey y. Scovell, 73.
Woolsey y. Chicago. B. & Q. R. Co.,
1081.

y. Trustees, 471.
Woolwine's Adm'r y. Chesapeake & O.

R. Co., 894. 897.
Woolworth y. Mills, 621.
Wooster y. Sherwood, 720.
Word y. Vance, 161. 164.
Work V. Bennett. 7l\8,

y. McCoy, 640.
Workman y. City of New York, 174.
World Pub. Co. y. Mullen, 498, 504.
Worley y. Spurgeon, 25ii.
Wormell y. Maine Cent R. Co., 817,

1025, 1027.
Wormsdorf y. Detroit City Ry. Co.. 68.
Worrilow v. Upper Chichester Tp.,
69, 88&

Worth y. Gilling, 854, 857.
Worthen y. Ralhx)ad Co., 402.
Worthlngton y. Mencer, 30, 874.

y. Scribner, 530.

y. Wade, 886.
Wray y. Milestone, 314.
Wren y. Weild, 552, 553.
Wrench y. Samenfeld, 617.
Wren's Adm'r y. LoulsyiUe, St L. &

T. Ry. Co., 871.
Wright y. City of Ft Howard, 944.

y. City of St. Cloud, 827, 870, 963.

V. CUirk, 58, 813.

y. Compton, 214.

y. Defrees, 115, 130.

y. Eaton, 47, 286.

y. Freeman, 3(UJ.

V. Hardy, 945.

V. Kerr, 217.

y. Lathrop, 342.

V. Leonard, 164, 217.

V. Ix)throp, 520, 529, 842.

y. Mulyaney, 378.

V. Omnibus Co., 322.

y. Pearson, 856.

y. Railroad Co., W7, 883, 985, 992.
1040, 1059, 1092.

y. Ramscot, 662.

y. Robotham, 733.

y. Skinner, 740.

y. Tlleston. 323.

y. Wilcox, 210, 252, 255, 656.

y. Williams, 792.

y. Wilson, 419.

y. Woodgate, 517, 542, 54J.

V. Wright, 322.
Wuotilhi y. Duluth Lumber Co.. 1026.
Wust y. Erie City Iron Works, 10. 51.
Wustland y. Potterfleld. 669.
Wyatt y. Buell. 527.

y. Great Western Ry. Co., 971.

y. Harrison, 751.

y. White, 606.
Wyckoff y. Queens County Ferry Co.,

1058.
Wyld y. Pickford, 819.
Wylie y. Birch, 83.

y. Elwood, 777, 7vS3.

y. Grundysen. 708.
Wyllie y. Palmer, 243, 258, 90a
Wyman y. Leayitt 3(58, 369.

y. Northern Pac. R. Co., 1079.
Wymore y. Mahaska Co., 986, 987.

123 i

GASLS CITED.

LVoL 1 comprises pftffes 1-652, inclosiye; yol. 2 the residue.]

Wyndham v. Wycombe, 201.

Wynkoop v. Wynkoop, 13.

Wynn v. City A Sabnrban Ry. Ck>., 987,

1081.
Wynne T. ParsoDS, 493, 517, 519.

Yahn v. City of Ottumwa, 947.

Yale y. Seeley, 686.

Yale Gaa Stove Co. v. Wilcox, 173.

Yandes v. Wright, 753.

Yarboroagh y. Bank of England, lOS.

y. Weaver, 625.
Yarmouth v. France, 199, 201.
Yamell v. Kansas City, Ft S. & M. Ry.

Co., 1081, 1082, 1090.
Yates V. Camsew, 722.

y. Jack, 89, 749.

y. Joyce, 85.

V. Lansing, 125, 527.

v. Milwaukee, 177, 789.

v. Squires, 258, 261.

y. Town of West Grafton. 092.

V. Whyte. 400.
Yazoo & M. V. R. Co. v. Fulton, 314.
Yeager v. Burlington, C. R. & N. Ry.
Co., lOOIi.

v. Wallace, 728.
Yeaman v. NoblesviUe Foundry &

Mach. Co., 1005.
Yeates v. Allin, 088.

y. Reed, 157, 482, 493.
Yeaton v. Boston & L. R. Corp., 1044.
Yellowly v. Gower, 697.
Yelton V. Railroad Co., 312.
Yerex v. Elneder, 761.
Yertore v. Wiswell, 331.
Yocum V. Zatauer, 414.
Yopst V. Yopst, 472.
Yordy v. Marshall Co., 182.
York V. Canada Atlantic Steamship Co..
1088.

V. Railway Co., 862, 9(Xi.
York & North Midland R. Co. y. Queen,

YoiU V. Harbottle, 719.

Young V. Atlantic Ave. Ry. Co., 885.

V. Bankier Distillery Co.. 757.

V. City of Charleston, 184.

y. Clegg, 479, 480.

Young y. Commissioners, 126^ 128, 7(H.

V. Davis, 9&

v. Harvey, 8S&.

V. Hichens, 645, 689.

V. Johnson, 550.

V. Kuhn. 506.

V. Leary, 901. 1070.

y. Macrae, 550, 552.

y. Marshall, 27.

y. Mason, 913.

y. MiUer, 503.

y. New Jersey & N. Y. Ry. Co.,
1052.

V. New York Cent. R. Co., 1034.

T. Ransom, 13.

y. South Boston Ice Co., 258.

V. Spencer, 84, 367.

V. Vaughn, 654.

v. Waterworks Co., 352.

y. Western Union Tel. Co., 306.

v. Young, 469, 594.
Youree v. Hamilton, 526,
Yundt v. Hartrunft, 465.

Z

Zabriskle v. Smith, 563.
Zachary v. Pace, 728.
Zealy v. Electric Co., 1072*
Zebley y. Storey, 614.
Zeigler v. Powell, 629.

v. Danbury & N. R. Co., 1035, 1036.
Zeitinger v. Hackworth, 664.
Zellnsky v. Price, 131.
Zell y. Dunkle, 26, 901.
ZeUer v. Martin, 211, 422.
Zellerback v. Allenberg, 640.
Zeminder Case, 140.
Zerflng v. Mourer, 458.
Zettel v. City of West Bend, 784, 787.
Zler V. Hofflln. 499, 511, 541.
Zlmmer v. New York Cent. & H. R. R,

Co., 305, 309.
Zlnn V. Rice, 607, 611, 629, 633. 684.
Zintek y. Stimson Mill Co., ICUl.
Zottman v. San Francisco, 43.
Zouch V. Chesapeake & O. Ry. Co., 305.
Zuccarello v. Nashville & C. R. Co., 185.
Zuckerman v. Sonnenschein, 513, 526,

540.
Zulkee v. Wing, 284.
Zumwalt y. Dickey, 337,

GENERAL INDEX.

VOLS. 1 AND 2.

fTbe figures refer to ibe pages. Pages 1 to iib'Z are oomprised in volume 1 ; the res-
idue Id volume 2.]

A

ABATEMENT.

of acfion on death of wrongdoer, 331.
of nuisance, by act of parties, 7i>0-802.
by action. 802.

ABSTRACT CLERKS,

liability for official acts. 133.

ABUSE OF LICENSE OR PROCESS,
trespass ab initio, 679-681.
action for. 632-634.

ACCEPTANCE,

duty of carriers to accept goods, 1066, 1067.

ACClDJiJNT,

liability for, 64-67.

ACTIONS,

forms of, at common law, 16-19.
ex delicto, 17.
ex contractu, 17.
cause of action as to time. 104.
cause of, determined by state of facts existing at commencement of suit.

104.
variations In the normal right to sue, 100-20S.
privilege of actor or general exemption, 101).
public acts, acts of state, 110-114.
exemption of legislators, 114-116.
exemption of judicial officers, 11(^-125.
exemption of executive otticers, 125-130.

liability for wrongs of subordinates, 137-139.
private acts, 130-154,

exercise of statutory rights, 140-145.
exercise of ordinary rights, 145-148.

LAW OF TORTS ( 1 255)

l2oG niOKX.

[Vol. 1 comprises pngt^s 1-652, ineliiMive; vol. 2 the residue.]

ACTIONS-Contlnued.

dlsciplinao' powers, 148. 149.

Tights of nec-esKlty, 149, 150.

rifflit of private defence. 151-1.53.
exemptions based on status, 154-189.

insane persons, 154-158.

infants, 158-165.

drunkards, 165, 166.

convicts and alien enemies, 166, 167.

private corporations, 167-173.

municipal and quasi municipal corporations, 173-184.

corporations not municipal engaged in public works, 184-189.
exemptions based on conduct of plaintiff, 189-204.
for continuing torts, 407-413.
b3' master for injuries to servant, 448-450.
for malicious abuse of process, 6!{2-634.
for malicious interference with contract, 634-636.
for nuisance, 782-788.
to abate nuisance, 802.

ACTIO PERSONALIS CUM PERSONA MORITUR.
application of maxim, 327, 328.

ACT OF GOD,

llabrilty of carrier for goods destroyed by, 1061.
In general, 64, 65. 70, 836.

ACTS OF STATE,

exemption of state from liability for, 110-114.

ADJECTIA'^E LAW OF TORTS.

torts and crimes distinguished, 8-11.

in what courts torts are cognizable, 12-16.

administration of law of torts in courts of common law, 16-30.

ADMINISTRATORS,

see "Executors and Administrators."

ADMIRALTY COURTS,
torts not cognizable in, 14.

ADULTERY,

action by husband, 464^(56.

ADVERTISEMENT.

privilege of, libel and slander, 541.

ADVICE OF COUNSEL.

as a defense to malicious prosecution, 621-623.

XMOEX. 1^5.

[Vol. 1 comprwen pages 1-662, inclasiTe; Tol. 2 the residue.]

AGRNT,

of legislature, liability, 114.

liability of corporation for act of agent, 171-173.

liability of municipal corporations for acts of, 181.

liability to principal for torts of subagent, 284.

liability for misfeasance, malfeasance, and nonfeasance, 2SG -291.

AGGRAVATION OF DAMAGES,

in libel and slander by malice, 517-520.

AGREEMENT,

discharge or limitation of liability by, 298-320.
before damage, validity, 298-309.
after damage. 310-320.
form. 310.
AIR,

Inttfference with light and air, 749, 750.

ALIEN ENEMIES,
right to sue, 1G6, 167.

ANGUISH,

mental suffering as element of damage, 368, 369.

ANIMAL.S,

right to kill trespassing, 152.

liability for damage caused by, 853-858.

carriers of live stock, liabilities, 1073-1076.

infected, liability. 857.

ferae naturse, 659.

ARBITRATORS,

exemption from liability, 118, 119.

ARCHITECT,

defamation of, 508.

ARREST,

false imprisonment, 424-429.

ASHBY V. WHITE.

injuria Imports damnum, 79-87.

ASPORTATION,

as element of conversion, 723, 724.

ASSATjliT AND BATTERY,
assault defined, 431.

apparent means of effecting attempt, 433.
battery defined, 434.
force and intent. 435^138.

1258 IHDBX.

LVol. 1 comprises pages 1-652, inolnsive; yol. 2 the residue.]

ASSAULT AND BATTERY— Continued,
deceit sometimes equivalent to force. 437.
defenses, 438-446.

justification, self-defense, 439-440.

defense of family, servants, and friends, 440.

defense of property, 441.

commensurate defense, 442.

authority, 443, 444.

mitigation, provocation, 444-446.
leave and license, 444-446.

ASSII.MPSIT,

ex delicto character of origin, 18.
waiver of tort and suit in, 27, 296, 297.

effect on other joint tort feasors, 346.

conversion, 737.

ASSUMPTION OF UlSK,
in general, 869.
by servant, 1013.

ordinary rislc, 1014-1019.
extraordinary risks, 1019, 1020,
appreciation of risls, 1021.
exceptions. 1021-1029.
other modifications, 1023.
as affected by original services, 1024, 1025.
promise to remedy, 1026.
justification in law, 1027.
assumption not properly voluntary, 1028,
rlsli of fellow servant, adoption of nile, 1030.
question for Jury, 1033.
test of common employment, 1036.
doctrine of vice principal, 1037.
confusion in opinion, 1037-1039.
negatively who are vice principals. 1037-1043.
performance of duty the test, 1043-1047.
doctrine of the United States supreme courj, 1047-10491
of fellow sen'ants and vice principals, 1047-1049.
negligence of master in selecting fellow servants, 1050.
concurrent negligence of master and fellow servant, 1051.
statutoiy changes, 1053-1056.

ATTOUNEYS AT LAW,

liability for negligence, 915-917.

immunity from liability for libel and slander, 526.

IHOKZ. 1 269

[Vol. 1 coniprifies pages 1-6R2, incluHivt; yoi. 2 the residue.]

AUCTIOXEEUS,

llabilit3' in conversion, 734.

AUTIIOftlTY,

no liability for autliorlzed acts, 130-154.

acts authorized by statute, 140-145.

exercise of orAiBary rtgbis, 145—194.
scope of servants authority as test of master's liability, 252-257.
Justification for assault, 443, 444.
of law as defense to trespass, 673-679.
to maintain nuisance, 788-7))3.
goods taken by public authority, liability of carriers, 10<)5.

AVOIDABLE CONSEQUENCES,

avoiding threatened danger before damage is done, 000-008.
avoiding unnecessary damage after injury, 069.
no duty to anticipate negligence, 070.
of negligence, English rule, 073.
American rule, 074.

B

BAGGAGE,

carriers of, see "CaiTiers."

BAILMENT,

liabUity of infant bailees, 162, 163.
liability for negligence, 000, 001.

BANKS,

liability for negligence of correspondent, 284, 285.

BARRISTER,

see "Attorneys at Law."

BATTERY,

8ep "Assault and Battery."

BELIEF,

probable cause, libel and slander, 546.

BICYCLES.

law of the road, negligence, 877.

BLASTING.

liability for negligence in, 848.

BOARD OF HEALTH,

#

liability of niunielpai corporation for acts of, 174.

BOXING MATCHES.

assault and battery, 203.

12G0 l.NDKX.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

BOYCOTTS,

see "Conspiracy."

BRIDGES,

liability for defects, 09, notes.

BROKER,

liability for conversion, 734.

BURDEN OF PROOF,

of negligence of carriers of passengers, 108^1086.
of contributory negligence, 941.

C

CANDIDATE.

defeat as special damage for defamation, 3SG.
defamation of, comment, 585.

CAPACITY,

due care according to, 871-875,

CARE,

immaterial in nuisance, 771.

degrees of, negligence, 816.

has reference to the course and constitution of inanimate and animate

nature, 827-832.
in the use of property, 832-837.

may have reference to knowledge of the danger, S07-871.
dependent on capacity of persons, 871-^75.
to be exercised at railroad crossings, 881-885.

master's duty not to expose servant to unnecessaiy risks, 990-1009.
master not an insurer of servant against injury, 1010-1013.
requisite in providing fellow servants, 1013.
degree of care of carriers of passengers, 1083-1086.
before entrance to car, 1087.

CARRIERS,

common carrier defined, 1057.
stipulations limiting liability, 299-302.
liability for negligence, 902.
of goods, 1059-1073.

liability as insurers, 1059-1061.

exceptions, inherent nature, 1061.

act of God, 1061.

public enemies, 1063.

conduct of shipper, 1064.

public authority, 1065.

INDEX. 1261

[Vol. 1 comprises pages 1-C52, inchuire; vol. 2 the residue.]

CA URIERS—Contlnued,
duUes, 106^1073.

acceptance of goods, 1066, 1067.
transportation of goods, 1008.
d&livery to consignee, 1069.
damages for nondelivery of goods, 1070.
connecting lines, 1071.
of live stock, 1073-1076.
of baggage, 1076-1078.
of passengers, 1078-1094.
not insurers, 1078.
who are passengers, 1078-1081.
degree of care and bnrden of proof, 10S3-1086.
rules and regulations, 108(5.
before entrance to car, 1067.
care in transit 1088.
termination of liability, 1002.

CASE,

oiigin of actions on the, 17-19.

CATTLE,

liability for trespass by, 854.
infectious animals, 858.

CATTLE GUARDS,

negligence, failure to maintain, 928.

CAUSA OAUSANS,

liability, dependent on responsibility for, 62.

CAUSE,

liability dependent on connection as, 61.

what is, 62.

condition not a cause, 63.

need not be sole cause, 68.

eftect of intervening cause, 70.

conduct is legal cause when damage results as a natural and probable

consequence, 74.
conspicuous antecedent, 76.
last human wronfrdoer, 7(>.
question of fact, 77.
plaintiff's own wrongdoing as, 191-194.

violation of statutory duties, connection as cause of harm, 929.
contributory negligence, connection as cause of harm, 971-977.

CAUSE OF ACTION,

detennincd by facts existing at commencement of suit, 104.

1262 INDEX.

[Vol. 1 comprises pages 1'6«}2, iuciusive; toI. 2 the residue.]

CAVEAT EMPTOR.

application of ixiaxim. 580.
see, also, "Deceit."

CHARACTER,

evidence of cliaracter inadmisBible to show negligence, d51.

CHARITIES,

liability of public charities for torts. 187.

CHASTITY,

imputation on, libel and slander, 490, 505.

CHILDREN,

what care expected from, 871-875.

CHURCH,

libel and slander, privilege of meetings or coi:ncil, 539.

CIA'IL. DAMAGE ACTS,
measure of damages, 416.

CIVIL PROCEEDINGS,

as basis for malicious prosecution. 004.

CLERK OF COURT.

liabUrty for official acts. 134.

CLUB.

disciplinary authority, 148.

C0(;GS v. BERNARD.

degrees of negligence, 81d.

COLLECTOR OF CUSTOMS,
see "Officers."

COMMAND.

liability by reason of, 38.

general or special, as test of master's liability, 248 251.

COMMENT.

libel and slander, right of fair, 534.

COMMISSIONERS OF HIGHWAYS,
see **Executive Officers"; "Officers.**

COMMON CARRIERS,
see "Carriers."

COMMON-LAW DUTIES,
clnssiflcation, 91.

COMMON-LAW REMEDIES,
for torts, 350-410.

INOKX. 1263

[Vol. 1 comprises pa^es 1-652, inclusive; vol. 2 the residue.]

OOMMON RIGHTS,

DO liability for exercise of, 154.

COMPAKATIVK NE(SLIGENt'E,
see "Negligence."
doctrine is not generally recognized, 978.

<;OMPENSATION,
gee **Damage8/* '

(UJXrEKT IN ACTION,

liability dependent on, 209-218.

CONDITION,
not a cause, (SQ.

CONDUCT,

see, also, "Continuing Torts."
actionable because of injurious consequences, 100.
liability for lawful and unlawful, 100-10.1.
unlawful conduct, 101.

wrongfulness determined by lex loci, not lex fori, 102.
continuing or completed, 36.
act or omission, 35.

CONFIDENTIAL COMMUNICATIONS,
conditional privilege, 530.

CONNICCTION AS CAUSE,
see "Cause."

CONSENT,

as defense to tort, 31, 199-204.

of owner or occupant as defense to trespass, G81-686. •
liability by reason of, 3S.
to liablUty by state. 111.
limited by parties, 202.
limited by law, 203.
waiver of liability by, 205-297.

CONSEQUENTIAL DAMAGES,
see "Damages."

CONSIDERATION,

for discbarge of liability after damage, 313-315.

C0NSI»1RACY,
defined, 037.

injury the gist of the action, 638.
use and effect of charge of conspiracy, 639, 040.

1^64 INDEX.

[Vol. 1 eoihprises pages 1-652, iuclusive; vol. 2 the rf<$idue.]

CONSPIRACY-Continued,

strikes and boycotts, 041-<;52.

the combination, 641-645.

the malicious intent, 645.

damage to complainant 646.
principles applied, 648.

CONSTABLES,

see "Sheriffs."
llabilfty for official acts. 130-133.

(CONTAGIOUS DISEASES.

transmission by glandered horses, H57.
imputation of, libel and slander, 50i).

CONTINUING TORTS,

continuing and completed wrongs, 36.
action for damages, 407-413.

CONTRACTOR,

see "Independent Contractor.'*

CONTRACTS,

enforcement of contract rights at common law, 19.

torts growing out of. 22-24.

sued ex delicto, 25.

quasi contract, enforcement of obligation, 20.

sued ex contractu or ex delicto, 26.
negligence or misfeasance in execution, 95.
ex delicto action against infant for breach, 161-1(»3,
in discharge or limitation of liability, 298-320.
before damage to, 208^300.
after damage, 309-321.
malicious interference with, 634-636.
negligence in performance of duties Imposed by, 897-918.
action for negligent breach by parties and privies, 904-906.
limitation of liability for neffllgence. effect on third persons, 906-910.
action by third peraon for negligence, 900-910.
negligence in performance includes want of competent skill, 910.
limiting liability of carriers of passengers, 1082.

CONTRIBUTION,

between joint tort feasors, 215, 216,

CONTRIBUTORY NEGLIGENCE,
no defense to deceit, 595-600.
burden of proving, 941.
as a defense, 959-062.

INDEX. 1265

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

CONTRIBUTORY NEGLIGENCE— Continned,
analogous to defendant's negligence, 960.
no defense to willful wrong, 961.
no defense to nuisance, OGl.
may bar recovery in fraud, 961.
exposure to danger, 962.
elements of, 962-977.

no duty to anticipate negligence, 970.

connection as cause, 971-977.

avoidable consequences, English rule, 973.
American rule, 974.

avoiding threatened danger before damage is d<me, 966 -9G8.

avoiding unnecessary damage after injury, 969.
comparative negligence, 978. '
vicarious negligence, 980-989.
of custodian of child, 981, 985.
assumption of extraordinary risks by servant, 1019, 1020.

CONVERSION,

see **Trover and Conversion.'*

CONVICTS,

right to sue, 166, 167.

CORAM NON JUDICE,

liability of judicial officers, 123.

CORPORAL PUNISHMENT,
right to inflict. 149.

CORPORATIONS,

liability of private corporations for torts, 167-173.

liability for exemplary damages, 169.

liability for acts ultra vires, 170, 171.

scope of agent's or servant's authority, 171-173.

liability of municipal and quasi municipal corporations for torts, 173-184.

maintaining public charity, liability for torts, 187.

CORPORATORS,

liability not cumulative, 172.

CORPSE,

rights in relation to, 13.

COUNSEL,

advice of, as a defense to malicious prosecution, 621-623.
immunity from liability, libel and Blander, 526.

COURSE OF EMPLOYMENT,
general meaning of, 258, 259.

LAW OF TORTS— 80

(VoL 1 compriiM>« pages 1-652, inclaaTe; toL 2 tlie residae.]

COl'RTS.

province of court and jury, aee "Jury.**
in which torts are cognizable, 12-16.

COVERTURK.

as a defense to actions in form ex delicto, 21S.

CRIME,

distinguished from tort, 8-11.
imputation of, slanderous per se, ri<)2.

CRIMINAL CONVERSATION,
action by husband. -KU.
action by wife for corresponding wrong, 467.

CRITICISM,

conditional privilege of, libel and blander, ri34.

CUSTOM AND USAOE,

due care with reference to, 875, 876.
evidence of, to show negligence, ^7, 94S»

CUSTOMER.

duties oweil to, negligence. 883.

liability of master to, f<Mr injuries by servant, 263.

D

dama(;es,

necessity of proving, 78-84.

when presumed, 81.

actual damage, 83.

for moral wrongs, not recoverable, 86.

must l>e caused by responsible human agent. 86.

must conform to legal standards, except where presumed. 86.

for acts of executive officers, 125-139.

incident to authorized act cannot be recovered, 139-154.

liability of municipal corporations, 182.
compensation, not restitution, the proper test, 360.
classification. 3G0.
compensatory damages, 360-382.

direct and consequential damagos. 364.

w^hen damages are presumed, 366.

when damages are not presumed, 367.

for mental suffering, 368.

proximate and remote, 371-382.

what are proximate consequences, 372-382L

INDBX, 1267

[Vol. 1 comprises pa^es 1-652, inclusive; vol. 2 the residue.]

DAMAGES-Contlnued,

illnstratlons of remote damagefl, 378-380.
illustration of damages not remote, 380-382.
pleading, 383-392.

general damages, what are, 383.

general damages need not be pleaded, 388-392.

special damages, what are, 383-388.

special damages must be specially pleaded, 388-392.
exemplary damages, 392-396.

who liable, 395-397.

joint tort feasors, 213, 214.

corporations, 169.

municipal and quasi municipal corporations, 180.

recovery by parent for seduction of child, 455.

province of court and jury, 307, 398.
mitigated damages, 398-400.

for false imprisonment, 430.
excessive damages, 400-403.
inadequate damages, 403, 404*
entirety of demand, 404-413. *
severable damages, 406, 407.
continuing torts, 407-413.
statutory changes, 413-416.

extent of recovery, 413^16.

death by wrongful act, 414, 415.

civil damage acts, 416.
as the gist in libel and slander, 486, 487.

mental suffering as an element of, 497.

aggravation by malice, 517-519.
special damages, in acticm for slander of title, 553, 554.
as the gist of actions for deceit, 600-602.
as the gist of an action for malicioua prosecution, 627-629L
aggravated by conspiracy, 637.
in action for conspiracy, 646.
for trespass, 690-695.
for waste, 703, 704.
in trover, 737-743.
the gist of nuisance, 778-781.
measure for nuisance, 808, 809.
the gist of action for negligence, 959.
for goods lost by carrier, 1070.

connecting lines, 1071.

1268 IHBEX.

[Vol. 1 comprises pages 1-652, inclnsiTe; vol. 2 the residue.]

DAMNUM ABSQUE INJURIA,
see "Nuisance."
explained, 86-80.
no liability for authorized acts, 139-154.

DANGER,

concealed, duty to licensee or volunteer, 890.
voluntary exposure to, contributory negligence, 962,

DANGEROUS THINGS,

instrumentalities, liability by reason of, 38, 832.

DEATH,

discharge of tort by, 326-335.

abatement of action on death of wrongdoer, 331.

DEATH BY WRONGFUL ACT,
Lord Campbell's act, 33a
action for, 330-^35.
damages, 414, 415.

DECEIT,

sometimes equivalent to force in assault and battery, 437.

what is actionable deceit, 558.

the wrongful conduct of defendant, 560-588.

the false representation, 561.

false statements with knowledge, 563.

false statement without knowledge, but with negligence, 565-509.

express misrepresentations, 570-573.

implied misrepresentations, 573-575.

assertion of falsehood or suppression of tiiith, 575-077.

expression of opinion, 577-581.

representation of law, 581, 582.

promises, 582-584.

inducing acts on plaintiff's behalf, 585.

inducing acts with respect to other specified persons, 587.

inducing acts with respect to party making statement, 587, 588.
conduct of plaintiff, 580-600.

connection as cause of damage, 580, 590.

plaintiff must have been deceived, 590, 591.

reliance on representations, 591-594.

materiality of representations, 594.

conduct of plaintiff as a bar to relief, 595.

contributory negligence, 595.
resulting damage, 600-602.

WDEX. 1269

[Vol. 1 compriaes pages l-662» indasiT*; vol. 2 the residue.!

DB FACTO JUDICIAL OFFICERS,
exemption from liability, 119.

DEFAMATION,

see "Libel and Slander**; "Slander of Title."
formerly oognizable in ecclesiastical courts, 13.

DEFECTS,

master's liability for latent defects, 850.

DEFENDANT,

normal rule as to, 32.

DEFENSE,

right of private defense, 151-154. .

DE JUKE JUDICIAL OFFICERS,
exemption from liability, 119.

DELIVERY,

of goods by carrier to consignee, 1069.

DETINUE.

as remedy for tort, 352.
remedy for conversion, 737.

DISABILITY,

care with reference to, 871.
effect on liability, 154.

DISCHARGE, ,

of liability for torts, 294r-347.

by voluntary act of party, 294-320.
by waiver, 295-297.
by agreement, 29&-320.

before damage, liberty of contract, 298-309.
after damage, 310-320.
f oim of agreement, 310.
parties, 311.
consideration, 813-315.
intent to discharge wrong In Issue, 315.
by notice, 308.
by operation of law, 321-324.
by Judgment, 321-326.
by death, 320-335.
by statutes of limitation, 335-340.
by compliance with statutory requirements, 340.
<^ joint torts, 341-347.
by Judgment, 341-344.
by release, 344-346.
by waiver, 340, 347.

1270

[Vol. 1 compriaes pages 1-652, inclusive; vol. 2 the residue.]

DISCIPLINARY POWERS,

no liability for exercise of, 14&

DISCRETION.

of judicial officer, 116.

of municipal corporations, 173.

DISTRESS,

damage feasant, 676.
in general, 3r>0.

DITCHES,

see "Surface Water,"

DIVISIBILITY OP DAMAGES,

damages must be recovered in single suit, 404.

DIVORCE COURTS,

torts not cognizable in, 12.
DOG,

as a dangerous instrumentality, 152.

DOMESTIC RELATIONS,

the family at common law, 447, 448.
injuries in family relations, 447-472.

DRAINS,

see "Surface Water."

«

DRIVER,

care to be exercised by, 877.

responsibility of master to third persons for wrongs of, 277.

vicarious negligence, 980.

DRIVING CASES,

conversion, 730. note 410; 720, note 354.

DRUNKARDS,

Uability for torts, 165, 106.

DURESS,

liability for torts committed under, 205, note,
persons under duress. 205.

DUTIES,

statutory duties, 95-100.

owed by master to servant. 990-1009.

owed by common carriers of goods, 1066-1073.

violation of, resulting in damage, is a tort, 78.

remedies for violation of, 85.

common law, contract and statutory duties. 90-1001

to respect property and possession. 653 Vh)9,

IMDXX. 1271

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

DWELLING,

every man^s house his castle, 674.

E

EASEMENT,

as defense to trespass, OSS.

right to maintain a nuisance, T74, 775.

EAVESDROPPING,
is a nuisance, 770.

ECCLESIASTICAL COURTS,
torts not cognizable in, 13.
defamation and malicious prosecution formerly cognizable in, 1^

ELECTION OFFICERS.

see **Judiclal Officers"; '*Officers.*'

ELECTION OF REMEDIES,

tort or contract against infant, 26, 162.
election to sue infant in assumpsit, 165.
tort or contract against married woman, 26.

ELECTRICITY,

liability for damage by, 863-865.

EMERGENCY,

care to be exercised under, 874.

EMPLOYER AND EMPLOYE,
see "Master and Servant."

ENTIRETY OF DEMAND.

of damage for tort must be recovered in single suit, 404.

EQUITABLE REMEDIES,
injunction. .383.
receivers, 359.

EQUITY,

torts not cognizable in courts of, 15.
concurrent jurisdiction over f^aud, 16.

ESTOPPEL,

liability because of, 40.
waiver of liability by, 295-297.

EVERY MAN'S HOUSE HIS CASTLBS,
application of maxim, 674.

1272 INDKX.

[Vol. 1 comprises pa^es 1-652, inclusive; Yol. 2 the residae.]

EVIDENCE,

of conversion, 722.

of negligence, burden of proof, 034-941.

contract or undertalcing, 037.

res ipsa loquitur, 938.

expert and opinion evidence, 943-947.

evidence as to custom, 947-949.

relevancy, 949.

of character Inadmissible to show negligence, 96L

weight of and failure of proof, 952.
of negligence of carriers of passengers, 1063-1086.

EXCAVATIONS,

dangerous, near highways, 877.

BX CONTRACTU,
actions, 16.

EX DELICTO,
actions, 16.

EX DOLO MALO ACTIO NON ORITUR,
application of maxim, 180.

EXECUTION OF PROCESS.

as justification for trespass, 674.

EXECUTIVE OFFICERS,

see, also, "Judicial Officers"; "Offloers.**
exemption from liability, 125-139.
liability for violation of purely public duties, 126.
liability for violation of private duties, 128.
liability for special injury, 130.
liability for unauthorized acts, 136.

EXECUTORS AND ADMINISTRATORS,
liability for torts, 205, 206, note.

EXEMPLARY DAMAGES,
see ''Damages."

EXEMPTION,

general exemption from suit, 109.
from liability, public acts, 110.

of state in general, 110.

liability by consent, 111.

of the United States, 112.

of the various states, 112.

of foreign statos, 113.

DTDEX. 1273

[Vol. 1 comprisefl paces 1-652, InclaslTe; vol. 2 the residue.]

EXEMPTION— Continued,

of legislators, 114-lia

of agents or servants of legislature, 114-110.

of judicial officers, 116-125.

of executive officers, 125-139.

private acts, 139-154.

iMised on status, 154.

insane persons, 154-158.

drunkards, 165.

private corporations, 167-178.

municipal and quasi municipal corporations, 173-184.

corporations not municipal, engaged in public works, 184-189.
based on conduct of plaintiff, 1S9-204.

wrongdoing, 189-199.

consent, 199-20L

EXPERT EVIDENCE,
of negligence, 943-947.

EXPLOSIVES,

considered as nuisances, 847, note 151.
liabUity for negligence, 847-852.

EXPRESS MALICE,
see "Malice."

EX TURPI CAUSA ACTIO NON ORITUR,
application of maxim, 189.

P

FALSE IMPRISONMENT,
defined, 417.

distinction from malicious prosecution, 630 G32.
legality of restraint, 417-419.
sufficiency of restraint, 419-421.
who liable, 421-424.
defenses, 424-430.

Justification, by judicial warrant. 424-427.

without warrant, 427-429.
mitigation, absence of malice, 430.

FALSE REPRESENTATIONS,
see "Deceit."

FAMILY.

at common law, 447.

injuries in family relations, 447-i72.

1 2 < 4 IMDKX.

[Vol. 1 comprises pages 1-662, indasiTe; toL 2 the residue.]

KKLLOW SERVANTS,

ma8ter*8 duty to provide suitable and suffleient fellow servants, 998 1000.
assumption of risk of, 1029.
adoption of the rule, 1031.
reason of the rule, 1031.
who are, province of Jury, 1033.

test of common employment, 1036.
doctrine of vice principal, 1037-1049.
confusion in opinion, 1037-1039.
performance of duty the test, 1037-1043.
negatively as to who are vice principals, 1039-1043.
doctrine of the United States supreme court, 1047-1049L
negligence in selecting, 1050.
concurrent negligence of master and, 1051.
statutory changes, 1053-1056.

FELONY,

trespass merged in, 11«

FEME COVERT,

see "Husband and Wife."

FENCES,

liability for failure to maintain, 96, note 380; 922, note 474.

FERAE NATURAE,
see "Animals."

FERRY,

false imprisonment on, 420.

ItlRE,

liability for fire started in self-defense, 153. ^
liability for negligence, 840-846.

FIRE DEPARTMENT,

liability of city for acts of, 174.

FIREWORKS,

explosion, volenti non fit injuria, 851.

FORCIBLE ENTRY,
trespass, 660.

FOREIGN LANGUAGE.

defamation in, not actionable unless understood, 482.

FOREIGN POWERS,

exemption from liability, 110.

FORNICATION,

charge of, libel and slander, 405, 504.

INDEX. 1275

[Vol. 1 coinpriBes pages 1-652, incIusiTe; toI. 2 the residue.]

FRAUD,

see, also, "Deceit."
liabUity of infants for, 163-165.

liability of executors and administrators for, 206, note,
liability of principal for fraud of agent, 267-271.
liability of master for fraud of servant, 2G7-271.
in obtaining release of liability, 316-320.

G

GAS.

as dangerous instrumentality, liability, H4S.
negligence with respect to, 848.

GATES,

liability for negligence at railroad crossing, custom and usage, 881«

GERMANIC LAW.

early conceptions, 247.

recent statutes, 1053, note 233.

GLANDERS,

infected horses, liability, 908.

GOOD FAITH.

priTileged communications, 530.

GRADING.

liability of municipal corporations for damage by, 142, 89, note 348.

GRANT,

distinguished from license, 682.

license coupled with an interest, trespass, 684.

GUARANTY,

action in tort to evade statute of frauds, Lord Tenterden's act, 26.

GUARDIAN,

infant must sue by, 30.

GUEST,

liability of innkeepers, 901, note 400.
care with reference to, 893.

GUILLE V. SWAN,

connection as cause, 50.

GUN,

Langridge v. Levy, 907.

GUNPOWDER.

liability for explosion, negligence, or nuisance, 847, note 151.
liability as for nuisance and for negligence, 847.

1276 INDKZ.

[Vol. 1 comprises iMiges 1-652, inclusiTe; toL 2 the residue.]

HARBORING WIPE,

see "Husband and Wife.**

HEALTH, .

nuisance affecting, 766.

HEEDLESSNESS,
see "Negligence.**

HIGHWAYS,

nuisance on, 764-766.

care to be exercised at level railroad crossings, 881-88S.

negligent interference wltb, 885.

customary use, 888.

HORSE,

as Instrumentality of harm, 855.
glandered, 858, note 203.
liability for frightening, care, 828.
trespass by, 854.

HOST,

see "Guest."

HUSBAND AND WIFE,

liability for torts of wife, 216-218.
statutory provisions, effect, 218-223.

torts committed by wife, 219-222.

torts as between husband and wife, 223.

torts committed against wife, 223.
actions between. 463.

action by wife for seduction, etc., of husband, 467, 468.
action for interference with domestic rights, 464-472.
action for alienation of wife's affections, 466.
action by husband for miscellaneous wrongs, 467.
injuries to wife, double cause of action, 469-472.

parties plaintiff, 470-472.

I

IDENTIFICATION,

theory of master's liability for torts of servant, 245-247.
not exclusive test of master's liability, 271, 272.

IMPLIED AUTHORITY,
see "Authority."

INDEX. 1277

[Vol. 1 comprises pages 1-062, inclusive; toI. 2 the residue.]

IMPLIBD MALICE,
866 "Malice."

INCORPOREAL RIGHTS,

interference witb nuisance, 749.

INDEMNITY,

to master by servant 283.

INDEPENDENT CONTRACTOR,
defined, 228.

when employer is liable for torts by, 231-23S.
interference with work, 232, 233.
negligence in selection, 232, 283.

liability where thing contracted to b6 done is tortious, 233.
liability for breach of absolute duty, 234, 238.
liability for acts of subcontractors, 238.

INFANTS.

liability for torto, 158-16S.
negligence of, 871.

INFECTED ANIMALS,
liability, 867.

INFECTIOUS DISEASES,

liability of owner of infected animal, 90S, note 422.

INJUNCTION,

against torts, 353.

conspiracy entitles to injunction, 637.

against trespass, 690-(>05.

against waste, 704-70C.

against nuisance, 803-807.

IN JURE NON REMOTA CAUSA SED PKOXIMA SPECTATUR, ,
application of maxim, 61, 372.

INJURIA SINE DAMNO,
explained, 79-81.

INNKEEPERS,

liability, 901, note 400.

INNUENDO.

office of, libel and slander, 510.

IN PARI DELICTO,

application of maxim, 960.

1278 IKDEX.

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

INSANE PERSONS.

liability for torts. 154-158.

liability for negligence, 871-875.

actual damages recoverable against Insane persons, 158.

INSPECTION,

of appliances by master, 1007-1009.

INSTRUMENTALITIES,
liability because of, 39.

liability by reason of conduct of servants, 264.
liability by reason of conduct of strangers or volunteers, 265.
assumption of risk, 1015-1017.
duty of master to furnish suitable, 993.
care of master In providing safe instrumentalities, 1011.

INSURANCE,

master does not insure servant from injury, 1010-1013.
liability of common carriers as insurers, 1059-1061.

exception, inherent nature, lOGl.

act of €k>d, 1061.

public enemies, 1063.

conduct of shipper, 1061.

public authority, 1065.
carriers of passengers not insurers, 1078.

INTENTION,

as element of tort, 0, 10.

not resulting in wrongful conduct is not actionable, 55-57.

to do wrong not essential to liability, 57-59.

to do wrong is malice, 59.

INTEREST RBIPUBLICAE UT SIT FINIS LITIUM,
application of maxim, 321.

INVITATION TO ALIGHT,

negligence and contributory negligence, 964.

INVITED PERSONS,

liability to, for negligence, 893.

JOINT TORT FEASORS,
who are, 209-213.
liability, 213-216.
contribution between, 215, 216.

JOINT TORTS,

discharge of, 341-317.

IHDKX. 1 27 9

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

JUDGE,

Bee ''Judicial Officers."

JUDGMENT,

discharge of tort by, 321-326.

reason, 321.

identity of parties and cause of action, 323, 324.

final Judgment on the merits, 325.
discharge of Joint tort by, 341-344.

against one Joint tort feasor without satisfaction does not vest prop-
erty, 343.

JUDICIAL OFFICERS,

see "Executive Officers"; "Officers."
exemption from liability, 116-125.
liability for acts in excess of Jurisdiction, 121.
liability for acts in the absence of Jurisdiction, 123.
exemption as to ministerial acts. 124.

JURISDICTION,

defined and explained, 116, 117.

JURORS,

exemption from suit, 120.

JURY. PROVINCE OF,

in malicious prosecution, 626.
negligence, analysis of functions, 932.

negligence ordinarily question fur, 931.

negligent violation of statutory duty, 924.
assumption of risk by servant, 1033.
fellow servants, who are, 1033.

JUS TBRTII,

defense in trespass, 6(>0.

JUSTICES OF THE PEACE,
see "Judicial Officers."

JUSTIFICATION,

of false imprisonment, 424^29.

with warrant, 424-427.

without warrant, 427-429. *•

of assault and battery, 439-444.
of trespass, 673-690.

K

KNOWLEDGE,

of danger as an element of contributory negligence, 965.

1280 INDEX.

[Vol. 1 comprises pa^es 1-652, incluaiye; vol. 2 the residoe.]

L

r.ABORERS, STATUTE OF,
liabUity under, 447.

LABOR ORGANIZATION,
conspiracy, 637.

LANDLORD AND TENANT,
liability for torta, 223-227.
contract to repair, 225.

letting premises in ruinouB condition or state of nuisance, 225« 226.
authorizing wnmgs, 225, 226.
liability of landlord to tenant, 227.

LAW OP THE ROAD,
see ''Negligence."

LAWYERS,

liability for negligence, 915-G17.

LEAVE AND LICENSE,
effect on Uability, 199-204.
mitigate damages for assault, 444-446.

LECTURES,

injunction against, publication of garbled copies, 357.

LETTERS,

as publication of defamation, 480.

LEVEL-CROSSING CASES,

injuries at railroad crossings, 881,

LEX FORI AND LEX LOCI,

wrongfulness of conduct, dependent on lex loci, 102.

LIABILITY,

for torts, how attaches, 37-48.

by personal commission, 37.

by consent or command, 38.

by relationship, 38.

because #F instrumentalities, 39.

by conduct operating as an estoppel, 40.

by ratification, 43^8.
theory on which liability attaches, 4i>-54.

acts done at peril with reference to harm, 48-51.

acts done willfully with reference to hami, 48.

acts done negligently with reference to harm, 48.

INDEX. 1281

[Vol. 1 com prises r^ges 1-652, inclusive; toI. 2 the residue.]

LIABILITY— Continued,

mental attitude of tort feasor, 54-61.

mere intention or malice not resulting in wrongful conduct not action-
able, 55-n57.

Intention to do wrong not essential, 57-50.
dependent on connection as cause, 61.
dependent on being causa causans or proximate cause, 62.
effect of intervening cause, 70.
extends to natural and probable consequence, 74.
wbfit is actionable conduct, 86-00.
for violation of common-law duties, 00-04.
for lawful and unlawful conduct, 100-105.
in use and management of property, lOL
determined by lex loci, not lex fori, 102.
for tort, essential elements, 106.
for public acts, 110-114.
of legislators, 114-116.
exemption of Judicial officers, 116-125.
of executive officers, 12r)-130.

for wrongs of subordinates, 137-130.
for private authorized acts, 139-154.
excess or abuse of autliority, 143-145^
for acts of necessity, 140.
for acts of defense, 151-154.
of insane persons for torts, 154-158.
exemptions based on status, 154-180.

of drunkards, 1<;5.

of private corporations, 167-173.

of municipal and quasi municipal corporations, 173- 184.

of involuntary quasi corporations, 182-184.

corporations not municipal engaged in public works, 184-180.
exemptions based on conduct of plaintiff, 180-204.

wrongdoing by plaintiff, 180-108.

consent, 100-204.
of executors and administrators for torts, 205, note,
of persons under duress for torts, 205, note,
of receivers for torts, 206-208, note,
for torts committed by or witli others, 200-203.
concert in action, 200-216.
dependent on relationship, 216-203.

husband and wife for torts, 216-223.

landlord and tenant, 223-227.

LAW OF TORTS — 81

1282 INDEX.

[Vol. 1 comprises pages 1-052, inclusive; Yol. 2 the residue.]

LI A Bl TJTY— Continued,

hulei>endent contractor, 228-238.
master and servant, 230-291.
of principal for misrepresentntion by agent, 2G7~2Gi>, nota
of master to servant, 280.
of servant to servant, 280, 281.
of servant to master, 282-280.
of sei*vant to third persons, 28C-291.
of partners for torts of copartner, 291-203.
for torts, diseliarge and limitation, 294-320.
discharge by waiver, 295-297.
by compliance with statutory requirements, 340.
by agreement, 310-320.
dis<*liarge or limitation by operation of law, 321-341.

discharge by death, 320-335.
of master for injuries to servant, 990.
of common carrier of goods, I0ns>-1()73.
as insurers, 10r)9-1001.

exceptions, inherent nature, 10C1«
act of God, 1001.
public enemies, 1003.
conduct of shipper, 1004.
public authority, 1005.
of carriers of live stock, 1073-1070.
of carriers of baggage, 1070-1078.
of carriers of i)assengers, 1078-1094.
termination, 1092.

LIBEL AND SLANDER,
defamation detlned, 473.

libel, slander, and malicious prosecution distinguished, 470-479.
publication, 470-480.

what constitutes, 479-483.
the giving out, 479-482.
the taking in by third persons, 482, 483.
republicaUon, 48,'^, 484.
repetition, 483, 484.
application to plaintiff, 484-480.
personal application, 484-480.
disparaging sense, 480.
damages as the gist of, 480-197.
Louisiana rule, 487.

presumption In actions for slander, 488-492.
special injury, nominal damages, 489.

INDEX. 1283

[Vol. 1 comprises pages 1-662, inclusive; vol. 2 the residue.]

LIBEL AND SLANDER-Continued.
pecuniary lo68, 489.

proximate or remote damages, 490-492.
presumption of damages in action for libel. 493-497.
words libelous per se, 493.

words libelous, but not slanderous per se. 4(H-4i)d.
special injury in libel, 49G.

mental suffering as an element of damage, 497.
words slanderous per se, 498.
construction of language used, 498-000.
function of court and Jury, 499, uOO.
signification of words, 500-512.
innocent words, 501.

words defamatory per se, Imputing a crime, 502-505.
words injurious to calling, 505-509.
words imputing contagious diseases, 509.
words tending to disherison, 509.
ambiguous words, 509, 511.
malice, 512-520.

presumption of, 513-516.
malice which must be proved, 51G-520.
actual malice, 517-i>20.
defenses, 520-550.

statutory . defenses, 520.
common-law defenses, 521-550.
justification, truth, 521-525.
privilege, 525-544.

absolute privilege, official communications, 529.

Judge, 536-549.
qualitied privilege, 530.
fair report, 531.
^ reports of public meetings, 533.
fair comment and criticism on books, 534.
fair comment a criticism on public men, 534-538.
reports of judicial proceedings, 535.
master and servant, 453.
public duty, 538.
fraternal organizations, 539.
commercial communications, 540.
privilege of advertiser, 541.
communications in confidential relations, 542.
mitigation, 544-550.
provocation, 545.

1284 INDKX.

[Vol. 1 comprises pages l-<>52, inclnsive; vol. 2 the residae.)

LIBEL AND SLANDER-Ck>ntinued,

commoD-law retraction, 546.

honest belief and mmora may mitigate damages, 54d.
plaintiff's character and position, 548-oi30.
injunction against libel, 353.
running of statute of limitations, 339.
retraction, 6 & 7 Vict 9, 520, 521.
see, also, ''Slander of Title."

LIBEUUM TENEMENTUM,
plea of, in trespass, 686-6SS.

LICENSE,

abuse of, trespass ab initio, 670-081.

LICENSE AND INVITATION,

due care with reference to, 875, 876.

LIGHT AND AIR,

obstruction of, easement, 749, 750.

LIMITATION,

of liability for torts, 294-^47.

by voluntary act of party, 294-320.

by agreement before damage, liberty of contract, 298-309.
by notice, 308.
by operation of law, 321^341.
by statute, 335-340.

by compliance with statutory requirements, 340.
of liability of carriers of passengers, 1082.

LIMITATION OF ACTIONS,
in tort, 335-340.

LIVE STOCK,

carriers of, see "Carriers."

LOCAL ACTIONS,

see "Actions." •

LORD CAMPBELL'S ACT,

9 & 10 Vict., death by wrongful act, 33a

LUNATICS,

see "Insane Persons."

M

MACHINERY,

see "Ways, Works, and Machinery."

MALFEASANCE,

distinction between malfeasance, misfeasance, and nonfeasance, 36.
liability of servant for, 286.

INDEX. 1285

[Vol. 1 comprises pages l'G52, inclusive; vol. 2 the residue.]

MALICE,

not resulting in wrongful conduct, not actionable, 55-o7.
willful violation of right, 59.
malicious wrongs in general, 555-558.
classification of malicious wrongs, 556.

deceit, malicious prosecution, malicious abuse of process, malicious
interference with contract, conspiracy, 555-558.
in libel and slander, 512-520.
in action for slander of title, 552.
in uialicious prosecution, 614-616.

absence of, mitigates damages for false imprisonment, 430.
in conspiracy, 645.

MALICIOUS ABUSE OF PROCESS,
when action lies, 632-634.

MALICIOUS INTERFERENCE WITH CONTRACT,
action for, 634-636.

MALICIOUS PROSECUTION,

formerly cognizable in ecclesiastical courts, 13.
defined, 195.

distinguished from libel and slander, 476-479.
distinguished from false imprisonment, 630-6;i2.
is defamation through courts of Justice, 477.
essential elements, 603-632.

the judicial proceeding, 604-010.

what Judicial proceedings are sufficient, 605-010.
termination of proceeding, 610-612.

success of plaintiff, 610-612.
parties to proceeding, 612-614.
malice and want of probable cause, 614-626.
malice, 614-616.
probable cause, 616, 617.

inference from conviction, acquittal, or dismissal, 618.
effect of honest belief, 619-621.
advice of counsel, 621-623.

concurrence of malice and want of probable cause, 623-625.
province of court and Jury, 626.
damages are the gist of the action, 627-629.

MANDAMUS,

as remedy for torts, 354.

MARRIED WOMEN,

see "Husband and Wife."

1286 INDEX.

[Vol. 1 coioprises pages 1-G52, inclusive; vol. 2 the residue.]

MASTER AND SERVANT,

liability of corporations for acts of servant, 171-17:5.
executive officers, liability for wrongs of subordinates* 137-131>*
'^ existence of relationship, 241-244.
inaster^s liability to third persons, 239-280.
liability dependent on relation of, 230-291.
respondeat superior, 240-244.
consent, torts authoriased or adopted, 245, 24C.

injurious conduct commanded, 246, 247.
theory of Identification, 245-247.
early Germanic theory of master*s liability, 247.
particular command, test of liability, 248-250.
general command, test of liability, 250, 251.
scope of authority as a test of liability, 251-257.
scope of authority includes command test, 252.
includes excessive or mistaken execution of authority, 252, 253.
master's benefit, 254.
motive of servant, 254.
includes liability for forbidden conduct, 255.
course of employment as a test of liability, 257-270.
includes scope of employment, 258.
authority of master not the test of liability, 259.
hours of employment not an unfailing or conclusive test of liability.
260.
duty owed by a master to third persons, 261-271.

dangerous instrumentalities, 264.
liability in cases of fraud, 267-271.
reason of master's liability to third persons, 271-276.
duty to third persons, 273, 274.

master the insurer against torts, but not against damage, 274,

275.
connection as cause, 275.
liability for indei>endent torts of servant, 275-280.
master's liability to servant, 280.
sen-ant's liability to servant, 280, 281.
servant's liability to master, 282-285.
liability of servant for torts of subagent, 281.
servant's liability to third pei-sous, 286-291.

servant's liability for misfeasance and malfeasance, 286.
servant's liability for nonfeasance, 287.
stipulations limiting liability, 302.

action by master for interference with relationship, 448-450*
for what -\vrong action lies, 449.

INDEX. 1287

[Vol. 1 comprises images 1-652, inclusive; vol. 2 the rodidue.J

MASTER AND SERVANT-Ck)ntinued,
form of action, 450.
liability for neKli^ence, 899.
master's liability for injuries to servant. 990.
master's duties to servant, 990-1009.

duties are peculiar to relationship, 991.

master owes duties to servant only when servant Is acting within

scope of his employment, 992.
master's liability for injuries caused by stranger or volunteer, 992.
providing safe place for work, 99!i.
providing fellow servants, 998-1000.
promulgating rules, 1001, 1002.

warning and instructing as to incidental dangers, 1002-1006.
warning and instructing as to extraneous dangers. 1007.
inspection, supervision, and enforcement, 1007-1009.
master not an insurer of servants, 1010-1013.
care in providing instrumentalities, 1011, 1012.
care requisite in providing fellow servants, 1013.
assumption of risk by servant, 1013.

knowledge and appreciation of risk. 1014-1019.
instrumentalities, 1015.
place, 1017.
violation of rule, 1018.
extraordinary risks. 1019.
appreciation of risk, 1021.
exceptions, 1021-1029.
other modifications, 1023.
as affected by original services, 1024, 1025.
promise to remedy, 1026.
justification in law, 1027.
assumption not properly voluntary, 1028.
risk of fellow servant, 1029.
adoption of the rule, lOIW.
reason of rule, lun-1036.
test of common employment, 1036.
doctrine of vice principals, 1037.
confusion in opinion, 1037-1039.
negatively who are, KKi 7-104,*}.
performance of duty the test, 1043-1047.
doctrine of the United States supreme court, 1047-1049.
negligence in selecting fellow servants, 1050.
concurrent negligence of master and servant, 1051.
statutory changes, 1053-10.36.
liability of carriers of passengers, 1091.

1288 INDEX.

[Vol. 1 comprises pnges 1-G52, inclusive; vol. 2 the residue.]

MEATS.

liability for danuij^e by poisoned meats, 907, 908.

MENS KEA,

effect of mental element in torts, 34.

defendant's mental attitude the gist of deceit, 5(50.

mental element of negligence, 820.

MEiNTAL SUFFERING,
damages for, 368-371.
as element of damage in action for defamation, 497.

MINISTERIAL ACTS,
wliat are, 124.

MINISTERIAL DUTIES,
defined, IIG.
conversion. 734.

MINISTERIAL OFFICERS,

see "Judicial Officers"; "Officers"; "Executive Officers.'*

MISFEASANCE,

distinction l)etween misfeasance, malfeasance, and nonfeasance, 36.
liability of servant for, 286.

MISREPRESENTATIONS,
see "Deceit."
made by agents, 267.
rescission of release obtalne<1 by, 318.

MISTAKE,

no excuse for interference with proi^erty or possession, G53.

MITKiATION,

of damages, see "Damages."

of damages for false imprisonment, 430.

absence of malice mitigates damages for libel or slander, 544

in lil>el and slander b^- absence of malice. 517-520.

of damages for malicious prosecution, advice of counsel, 621.

of damages In assault and battery, leave, license, and provocation, 444.

MONKEY,

liability for injuries by, 854.

MOTIVE,

immaterial in nuisance, 772-774.
see "Mens Rea."

MUNICIPAL AND QUASI MUNICIPAL CORPORATIONS,

liability for torts, 173-184.

liability for exemplary damages, 180.

INDEX. 1289

[Vol. 1 coniprijies pn^es 1-652, inclasiTe; vol. 2 the residue.]

N

NAME,

right to trade-name. 146.

NATURAL AND PROBABLE CONSEQUENCES,
what are. 74. 78, 372.

NECESSITY,
rights ot 149.

NEGLIGENCE,

of common carrier, see "Carriers.**
definition, 810, note,
a distinct wrong, 813.
essential elements, 810.
care, degrees, 816.

mental element, 820.
inadvertence essential to negligence, 821.

willful and wanton negligence, 823.
duty, 825.

common-law duty to exercise care, 827-807.
inanimate nature, 827.
animal nature, 828.
human nature, 829.
with respect to property, 832-8(17.
accumulations of water, 833-835.
exceptions to rule In Uylands y. Fletcher, 835, 830.
things of weight, 836, 837.
fire. 840.

explosives, 847-852.
poisons, 852.
animals, 853-858.

things dangerous because put in motion. 8.")8-8G3.
electricity, cS(a^865.
summary, 8(55.
due care may have reference to knowledge of the danger, 867-

871.
care with reference to capacity, 871-875.
custom and usage, 875, 876.
licf*nse and invitation, 875, 876,
care in resi^ect to highways, 877-vS79.

ordinary and extraordinary use, 877-879.

law of the road, 877-^79.

conduct of railroad companies, 881, 882.

1290 INDEX.

[Vol. 1 comprised pages 1-662. inclusiye; toI. 2 the residue.]

NEGLIGENCE-Continued,

care at railroad crossings, 881-885.
conduct of travelers, 882-885.
interference witb highways, 885-889.
customary use of highways, 888.
care owing to trespassers on real estate, 889, 890.
care owing to volunteers and licensees on real estate, 890-893.
care owing to invited persons, 893-895.
test of mutuality, 896, 897.
contract duties, 897-918.
master and servant, 899.
telegraph companies, 899, 900.
bailments, 900, 901.
carriers, 902.

parties and privies, 904-906.
damage caused by dangerous things, 906-909.
damage in course of negligent performance of contract, 906-910.
efTect of contract limitation on liability to third peraons, 906-810.
includes competent skill, 910.
medical men, 911-914.
lawyers, 915-917.
statutory duties, 918-931.
public duties, 918.

must be a negligent violation of statutory requirement, 918.
plaintiff must be within class for whose benefit duty was

created, 918.
proximate damage must result, 919.
private duties, 920.
question for Jury, 924-929.
connection as cause of harm, 929.
province of court and Jury, 931.
analysis of functions, 932-934.

ordinarily a question of fact for the Jury, but sometimes question oi
law for the court, 951.
burden of proof, 934^941.

contract or undertaking, 937,
res ipsa loquitur, 988.
contrlbutoi-y negligence, 941.
statutory changes, 941.
evidence, expert and opinion evidence, 943-947.
evidence as to custom, 947-949.
evidence must be relevant 949.
weight of evidence and failure of proof, 952.

INDKX. 1291

[Vol. 1 coni]iriHes pages 1-052, inclusive; voi. 2 the residue.]

Xi:(;LIGENCE-<3ontinued,
damages the gist, 959.
contributory negligence, 959-989.

analogous to defendant's negligence. 960.

exposure to danger, 962.

elements of contributory negligence, 962-977.

avoiding threatened danger before damage is done, 960^

avoiding unnecessary damage after injury, 969.

no duty to anticipate negligence, 970.

connection as cause, 971-977.

avoidable consequences, 973. 974.
English rule, 973.
American rule, 974.

comparative negligence, 978.

vicarioa^ negligence, 980-989.
custodian of child, 984-989.

no defense to deceit, 595-600.
of parent In action for injury to child, 988, 989.
master's liability for injuries to servant, 990.

master cannot escape liability by prescribfbg rules, 1002.

assumption of risk by servant, 1013.
of carriers of passengers, burden of proof, 1083.
liability where other causes contribute, 67.
negligent injury of wrongdoer, liability, 197, 198.
right to contract against liability for, 300.
immaterial on question of nuisance, 771.
distinguished from nuisance, 747.

NEMO DEBET BIS V^EXARI PRO EADEM CAUSA,
application of maxim. 321.

NITROGLYCERINE,

liability for explosion, Sn.

NOISES,

as nuisance, 780.

NOMINAL DAMAGES,
see "Damages."
presumed to follow the invasion of simple rights, 366.

NONFEASANCE,

distinction between nonfeasance, misfeasance, and malfeasance, 36.
liability of servant for, 287.

NONSUIT,

in negligence cases, 951-958.

1292 iiiOKx.

[Vol. 1 comprises poges l-ij^2, incluiiive; \oL 2 the residue.]

NOTARY PUBLIC,

liability for om<Ial acts, 134.

NOTICE,

limiUtion of liability by, 308.

NUISANCE,
detined, 744.

distinguished from a purpresture, 743.
distinguished from trespass, 745.
distinguished from negligence, 747.
damnum absque injuria, 747.

* rights invaded, 748-767.

• Injury to corporeal property, 748.

injury to easement of light and air, 740-751.

support, 751-753.

interference with water rights, 753.

interference with percolating, subterranean, and artificial waters, 757
759.

Interference with surface water, 760-763.
on highways, 764-766.

interference with health, comfort, and conveniencei 766, 767.
use of property, 768-770.
l>ersonal comfort, 770.
care immaterial, 771.
motive immaterial. 772-774.

plaiutifT not disentitled by having come to the nuisance, 774.
circumstances considered lu determining what is, 775-778.
damages the gist of the wrong, 778-781.
substantial interference with comfort, 780.
kinds of nuisances, 782-7a'i.

public, private, and mixed nuisances, 782, 783.

kinds of uuisauces for which private action lies, 782, 783.

private action for public nuisance, 781-787.

a continuing nuisance, 788.

legalized nuisance, 78S.

private nuisances, 788.

authorized by statute, 780, 702.
authorized by common law, Vo2, 703.
parties to proceedings against, 793-708.

parties plaint IfT. 703-705.

parties defendant, 705-708.
remetUes. 700-800.

abatenieut by act of parties, 700-802.

[Vol. 1 comprises pa^ea 1-6G2, inclusive; ^ vol. 2 the residue.]

N UIS ANCE— CJontinued,

abatement by action, 802.
equitable remedies, 803-8(>7.

injunction against, 353.
damages, 808, 800.
liability of municipal corporations, 176. 177.
letting premises in state of, liability of landlord, 225, 220.
keeping explosives, 847.
poisons, 852.

O

OBLIGATION,

common-law obligations, 19.

OBSTRUCTION,
of highway, 885.

OFFENSIVE ODORS,
as nuisance, 769.

OFFICERS,

see ** Judicial Officers"; "Executive Officers.**
exemption from liability of Judicial officers, 116-125.
exemption from liability of de Jure and de facto officers, 119.
liability of Judicial officers for acts in excess of Jurisdiction, 121, 122.
exemption of executive officers from liability, 125-139.
liability for wrongs of subordinates, 137-139.

uonministerial officers, 137.

ministerial officers, 139.
liability of municipal cori)orations for unauthorized acts of, 181.

OPINION,

expression of does not constitute deceit, 577-581.

OPINION EVIDENCE,
of negligence, 943-947.

OPTION,

essential element of consent, 200.

ORDINANCES,

duties imposed by, 99.

OUSTER,

by one cotenant, conversion, 732.
trespass, 607.

OYSTERS,

right to possession, 659, note 33.

1294 INDEX.

[Vol. 1 comprises ^pages 1-652, iudusiTe; vol. 2 the residue.]

P
PAINTINGS,

"Beauty and the Boast,** mitigation of dflmagen, 39S.

PARENT AND CHILD,

action for injuries to child, 451-463.

party plaintiff determined by right to services, 453, 454,
damages for seduction, 45^-160.

exemplary damages, 455.
recovery by parent for seduction of child, 458.
other injuries to children, 460-462.
statutory changes in right to sue, 456.
action by child against parent, 462, 463.
imputing negligence of custodian to child, 984-9S9.

PARTIES,

to agreement after damage in discharge of liability, 311-313.

plaintiffs in actions for injuries to wife, 470.

in action for. malicious prosecution, 612-614.

In trover and conversion, 731.

to proceedings against nuisance, 7d3-798i.

I»ARTNERS,

liability for torts of copartuer, 291-293.

PASS,

passenger traveling on, 1082.

PASSENGERS,
see "Carriers."

PAWN,

conversion of, 714.

PENALTIES,

as affecting statutory duties owed to private parties, 98.

PERCOLATING WATER,

interference with, a nuisance, 757.

PER QUOD ACTIONS,

action by imrent for injury to child, 450.

for defilement of wife. 464-466.

for alienation of wife's affections, 406.

PETROLEUM,

liability for explosion, 850, note 162.

PHOTOGRAPHS,

injunction against publication, 357.

INDKX. 1295

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

PHYSICIANS AND SURGEONS,
liabUity for negligence, 011-014.

PIIX)TS.

liability for mistake of judgment, 875.

FLiAINTIFFS,

normal rule as to. 30.

PLEADING,

general and special damages, 3R't. .X02.
in trover and conversion, 706, note 296.

POISONS,

liability for negligence, 852. IKK).

POLICEMEN,

liability of city for acts of, 174.

POSSESSION,

wrongs to, 653 et seq.
duty to respect, 653-659.
nature of, 657, 658.
objects of, 658-660.

real and personal property. 658, 659.

things ferai naturae, 659, 600.
constructive possession, what is, 672.
to maintain trespass, 663-673.
sufficient to maintain trover, 710-716.

POSTAL CARDS,

as publication of libel. 481.

POST-OFFICE AUTHORITIES,

liability for wrongs of subordinates, 137.

PRESCRIPTIVE RIGHT,
to maintain nuisances, 750.

PRESUMPTION,
. of damage in actions for slander, 488-492.
of damage in actions for libel, 493-497.
of negligence, burden of proof, 934-941.
of negligence of carriers of passengera, 1083-1086.

PRINCIPAL AND AGENT,

see "Master and Servant."
liability in cases of fraud, 267-271.

PRINTING,

as publication of libel. 480.

1 296 INDEX.

[Vol. 1 comprises ppgea l-4i52, inclusive; Tol. 2 the residue.]

PRIVACY,

rlKht to, 147.

PRIVATE DEFENSE,
see "Self-Defense."

PRIVILEGE,

as a defense to libel and slander, 525-544.

PRIZE FIGHTING.

liability of principals for assault and battery, 203.

PROBABLE CAUSE,

in malicious prosecution, 610-(519.

PROBATE COURTS,
see "Courts."
torts not cognizable in. 13.

PROCESS.

malicious abuse of, 632-634.

as defense to trespass. 673-676w

PROPERTY,

wrongs to, 653.

duty to respect, 653-657.

use of, constituting nuisance, 768-770.

PROVINCE OF COURT AND JURY,
see "Jury."

PROVOCATION,

efTect to mitigate damages, 398, 399.
in assault and battery, 444-446.

PROXIMATE AND REMOTE CAl'SE,
see "Cause"; "Damages."
defined, 61.
deceit, connection as, 589.

PUBLIC ACTS,
acts of state, 110.

PUBLICATION,

of defamation, 470-486.

PUBLIC BUILDINGS,

liability of city for negligence, 178.

PUBLIC OFFICERS,
see "Officers."

PUBLIC PARKS,

liability of city in connection with. 174.

INDKX. 1297

[Vol. 1 comprises pages 1-652, inclusive; vol. 2 the residue.]

PURPKESTUKE,

distlDguished from nuisance, 745.

Q

QUASI CONTRACT,

enforcement of obligation, 20.
sued ex contractu or ex delicto, 26.

QUASI JUDICIAL OFFICERS,
exemption from liability, 116-125.

QUASI MUNICIPAL CORPORATIONS,
liability for torts. 182-184.

QUASI TORTS,

torts growing out of contracts, 22-24.
actions ex contractu or ex delicto, 27, 28.

QUI FACIT PER ALIUM FACIT PER SE.
application of maxim, 245. 256. 271.

B

RAILROAD CROSSINGS,

care to be exercised at, 881-885.

RAILROAD PASS,

passenger traveling on, 1082.

RAT.

duty to insure safety, exceptions, Carstalrs v. Taylor, 83G.

RATIFICATION,

act must be in interest of person ratified, 43, 44.

liability by, 43-48.

must be with full knowledge and intent 44-46.

is equivalent to antecedent authority, 4(>-48.

is total not partial, 40-48.

does not discharge liability of tort feasor to third persons, 46-48.

liability for false imprisonment by, 421.

REASONABLE CAUSE,
see "Probable Cause."

RECAPTION,

right of, as a defense to trespass, 077.

RECEIVERS,

liability for torts, 200-208.

LAW OF TOKT8— 82

1298 INDEX. I

i

[Vol. 1 comprises pa^es 1-652, inoIuKire; vol. 2 tbe residue.]

REOKLESSXESS. HEEDLESSNESS. AND WANTONNESS,

see "Negliifence."

REGISTER OF DEEDS,
see "Officers."
liabllit J for official acts, 133.

RELATIONSHIP,

liability by virtue of, 38.
liability dependent on, 216-293.

husband and wife, 216-223.

landlord and tenant, 223-227.

indei)ondent contractor, 228-238.

master and servant, 239-291.

liability of partners, 291-293.
liability for false imprisonment by, 421.
of master and servant, duties peculiar to, 991.

RELEASE,

of liability, rescission for fraud, 310-320.
of liability after damage, 310-320.
of Joint tort, 344, 345.

REMEDIES.

for torts, 11, 348-416.

common-law remedies, 25.
judicial remedies, 351-416.

action for damages, 300-416.
extrajudicial remedies, 350.
statutory remedies, 348, 349.
for violation of duty, 78.
no riglit wltUout a remedy, 85.
for violation of statute duties, 95-100.
for wrongs to i>ossession and property, 653-659.
for waste, 703-706.
for conversion, 737-743.
for nuisance, 799-809.

REMOTE CAUSE,

see "Cause."

RENDERING ESTABLISHMENT,
as nuisjince, 770.

REPETITION,

of defamation, see "Libel and Slander.**

REPLEVIN,

remedy for conversion, 7o7.

INDEX. 1299

[Vol. 1 comprifos paget; l-<i52, inclusive; vol. 2 the residue.]
REPORTS,

»ff

privilege of, see "Libel nnd Slander.*

REPRESENTATION,
see "Deceit"

RESCISSION.

of release obtalne<l by fraud. 316-320.

RES IPSA LOQUITUR.

application of maxim, 038.

KES JUDICATA,

discharge of tort by former Judgment, 322.

RESPONDEAT SUPERIOR,
application, 240-245, 250.

RETREAT.

no duty to when assaulted, 439*

REVKRSIONAKY INTEREST,
title to maintain trespass, 06G.

RIGHTS,

common-law classification of, 93.

RIOT,

exemption of common can*ier from liability because of, 1003.

RISK,

see "Assumption of Risk."

RISKS OP EMPLOYMENT,

assumption by servant. 1013-1056.

ROAD SUPERVISORS,
see "Officers."

RULES.

duty of master to prescribe rules, 1001. 1002.
violation by servant, assumption of risk. 1018.
of carriers of passengers, 1080.
of master^ 1001.

RYLANDS V. FLETCHER,

liability for dangerous instrumentality. 833.

S
SAFETY,

duty of insuring. 833. 838.

SCANDALUM MAGNATUM,
action for, 478, note 11.

1300 IXDKX.

[Vol. 1 comprises pa^es l-t{52» inclnsiTe; vol. 2 the residue.]

SCHOOLMASTER,

disciplinary powers, 148.

SCIENTER,

as an element of tort, 54.

due care depends upon knowledge, 8G7.

SCOPE OP EMPLOYMENT,

hours of labor as a test, 9d2.

master's liability to servant only when acting within, 902.
SEDUCTION,

defined, 456.

right of child to recover against her seducer, 454.

by woman seduced, 457.

recovery by parent, 458.

damages, 4r)S-4<X).

of wife, action by husband, 464-466.

SELF-DEFENSE,

liability for fire started in, 153.

as Justification for assault and battery, 439-443.

SELF-HELP,

as remedy for trespass, 690-095.

SETTLEMENT,
see ''Discharge.**

SHERIFFS.

liability for official acts, 130-133.

SIC UTERE TUO UT ALIENUM NON LAEDAS,
application of maxim, 101, 832.

SKILL,

requirement in particular undertaking, 910.

SLANDER,

see "Libel and Slander."

SLANDER OF TITLE,
detlned, 473.

falsity of statement, 551.
malice, 552.
special damages. .55,'}, 554.

SLAUGHTERHOUSES,
as nuisance. 777.

SMOKE,

as nuisance, 769.

13U1
[Vol. 1 comprises pages l-to2, inclusive; vol. 2 the residue.]

SPECIAL DAMAGE,

see "Damage."
SPRING GUNS,

as nuisance, 7<»8. note 121).
SQUIB CASE,

Scott V. Shephard, 71,
STATUS,

variations In right to sue based on, 154-189.

place In law of torts, 31.
STATUTE,

no liability for exercise of statutory rights. 140-145.

violation of statutory duty, connection as cause of harm, 020.

statutory changes as to burden of proving negligence, Wl.
STATUTES AND ORDINANCES,

duties imposed by, 95-100.
STATUTES OF LIMITATION,

discharge of tort by, 3;i5-340.
STATUTORY DUTIES,

statutes, liability for negligent violation, 918 930.
STATUTORY REMEDIES,

for torts, 348, 349.

STOCK,

carriers of live stock, liabilities, 1073-1076.

STREETS,

liability of municipal corporation for defect, 175.

STRIKES AND BOYCOTTS,
see "Conspiracy."
principles applied, U48-(jo2.

SUBSTANTIVE LAW OF TORTS,
the person injured, 30-32.
tort feasor. IV2-34.

normal liability, 32-34.
wrongful conduct, 34-37.

mental element, 34.

acts or omissions, 35.
theory on which liability attaches, 48-54.
theory of absolute liability, 49-51.
theory of culpability, 51-54.
true theory of liability, 53, 54.
mental attitude of tort feasor, 54-61,
damage and duty, 78-84.

1302 INDEX.

[Vol. 1 comprises pages 1-652, indosive; vol. 2 the residue.]

SUNDAY.

damages suffered on, when recoverable, 1U3.

SUPPORT,

right to lateral support, 731.

SURFACE WATER.

interference with, 760-763.

T

TANNERIES,

as nuisance. 709. note 138.

TAX COLLECTORS,
see "Officers."

TELEGRAPH COMPANIES,

stipulations limiting liability, 302.
liability for negligence, 890, 9U0.

TELLTALES,
negligence, 928.

TENANTS IN COMMON,
liability for trespass, 0B7.
liability for conversion, 732.

TBNTERDEN'S ACT, LARD,
warranty, 25, 587.

THEATER,

rights of holder of tickets. 683.

THE KING CAN DO NO WRONG,

application of maxim. 110.

THREATS,

do not constitute an assault, 432.

TIMBER,

destiniction of. as waste. 701.

measure of damages for conversion. 738.

TIME-TABLE,

right to rely on, deceit. 580. 597.

TITLE,

to maintain conversion, 710.
to maintain trespass, 603.

TOUT,

definition, 1.

definition by reference to remedy, 1.

WDKX. 1303

[Vol. 1 comprises pages 1-652, iuclusive; toL 2 the residue.]

TOUT— Continued,

definition by reference to nature of right, 3.

definition by Mr. Polloclt, 106.

other definitions, 5.

general nature, 1-108.

adjet'tivo and substantive law of, 6.

distinguished from crime, H-11.

intention as element of, 0, 10.

remedies. 11.

cognizable only in courts of common law, 12-16.

administration in courts of common law, Ki-IK).

enforcement of obligation of at common law, 21.

growing out of contracts, 22-24.

quasi torts, 22-24.

sued ex contractu, 27.

exeiuptiou from liability for torts, general and special, 32-34.

how lial)ility attaches, 37-48.

iiieory on which liability attaches, 48-54.

elements essential to recovery in, 100.

classification of, 107.

committed by or with others, liability, 200-293.
relationship, 210-293.
continuing torts, 407-413.

TRADE-MARKS,

what to be protected, 146, 147.

TRADES UNIONS,
conspiracy, 037.

TRANSITORY ACTION,
see "Action."

TREE,

projecting, liability as for trespass or nuisance, 746.

TRESPASS,

definition and nature, 0<K>-OG3.

when lies, 17.

possession to maintain, GG,'M)73.

as between landlord and tenant, 605-668.

actual possession, ()C8.

possession may be without title, 609, 670.

possession must be exclusive, 671.

possession must be had animo possidendi, 671.

possession at time of wrong, not of action, 671, 072.

[Vol. 1 oompriges pages 1-C52, inclusive; vol. 2 the residue.]

TKKSPASS-Continued.

possession to maintain constructive possession, G72 073.
defenses, (]7;MKK).

authority of law, le^al process. G73-676.
without lejyal process, 07(M>79.
abuse of license, trespass ab Initio. 079, GSa
consent of owned or occupant, C8l-iw«i.
liberum tenementum, 68(V-690.
casement or special property, 688-<JiM>.,
remedies, GJ)(>-095.

injunction against, 3r*3.
distinguished from waste, G96.
distinguished from nuisance. 745.
on the case, origin of action, 18.

TRESPASSERS,

liability to, for negligence. 890.

TROVER AND CONVERSION,

conversion defined, 70C.

origin of action, 18.

when action lies, 700-710.

title to maintain, 710-710.

the unautliorized act 710-730.

violation of absolute duty, 719. 720.

subseciuent dealings with property, 720-722.

conversion exists when property is wrongfully taken 722 7*>3

conversion exists when property is wrongfully i>arted with, 7l>i 725

conversion exists when property is wrongfully retained 72r>-7'>9

conversion exists when property is wrongfully destroyed. 729 730

parties, 731. '

joint owners. 732-7;U.
ministerial duties, 734-730.
remedies, 737-743.

compensatory damages, 737-742.

special damages, 742.

nominal damages, 742.

exemplar^' damages, 743,
distinguished from waste, 090.

liability of exetnitors and administrators for. 205, note.
TRUTH,

as justilication, libel and slander, 521.

[Vol. 1 eoDiprisfS page& 1-4352, indnsiTe: toI. 2 the residiie.]

U
UBI JUS IBI KEMEDirM.

the normal rii;fat of reclrptis, 30.
application of maxim, 85.

UliTRA VIRES.

liability of corpora t ions, 170. 171.

liability of muoiciiial coriMirations for acts ultra vires, ISO.

UNDUE INFLUENCE.

rescissioD of release obtained by, 319.

V
VAPORS.

nuisance. 747, 707.

VENEREAL DISEASE.

cliarge of. actionable per se. 509.

VERDICT,

excessive and inadequate, 400.

VICARIOUS NEGLI(;ENCE,

when a bar to re<»overy, 980-1189.

imputing ne^li^ence of custodian of child, 0S4 -080.

contributory ne^jrligence of parent in actiou for injury to child, IV^S, 989.

VICE PRINCnUALS.
who are. \iKVt.

negatively who are. 1037-1043.
doctrine of. iaS7-1049.

fellow servants, 1037.

confusion in opinion, 1037-1039.

performance of duty the test, 1043-1047.

doctrine of the I'nited States supreme court. 1047-1049.
concurrent nejrliffence with fellow servant, 1053.

VINDICTIVE DAMAGES,
see "Damages."

VIS MAJOR.

see "Act of God."
liability for damage caused by. 04, G5, 70, lOOl.

VOLENTI NON FIT INJURIA,
explained, 199-204.
a8Sumi)tion of risk. 1028.
application of maxim, 199, 200.

VM)() INDEX.

[Vol. 1 comprises pages 1-652, inclusivu; toI. 2 the residae.]

VOLITXTKKRS AND LICEXSEKS,

liability to, for negligence, 81K>-803. *

no duty owed by master to volunteers, Wl, \

VOTER.

injuria imports damnum, Ashby v. White, 919.

W

WAIVER.

of liability for tort. 205-207.

of tort and suit in assumpsit, 206, 207.

of Joint torts, 346, 347.

WANTONNESS,

liability for wanton injuiies, 105.
wanton neglljfence, see "Negligence."

WARNING,

instructing employes as to danger, see "Master and Servant.*

WARRANT.

Justification under, for false imprisonment, 424-427.
Justification for false imprisonment without, 427-429.

WARRANTY,

Lord Tenterden's act, 23. 587.

WASTE,

definition, 605.

distinguished from trespass and conversion, 600L

kinds of waste, 607.

permissive or commissive waste, 607-702.

legal or equitable waste, 703.
remedies, 703-706.

damages, 703, 704.

injunction against, 353, 704-706,

WATER,

interference with water rights a nuisance, 753-759.

Interference with percolating, subterranean, and artificial waters, 757-756L

interference with surface water, 760-763.

WATER COMPANY,
Atkinson's Case. 910.

WAY,

see "Highway.**

WAYS, WORKS, AND MACHINERY,

duties of master to provide suitable, 993.

INDEX. 130]

[Vol. 1 comprises pages 1-652, inclusive; toI. 2 the residue.]

WILLFILNESS.
in general, 48.
willful negligence, 823.

WIND,

act of Ood, negligence of comniou carrier, 10G2.

WINDOWS,

see "Light and Air"; "Privacy."

WITNESS,

exemption from suit. 127.

WRITS,

as defense for false imprisonment, 424.
as defense for trespass, 677.
at common law, 16.

WRONGDOING,

of plaintiff as defense to tort, 32.

WB8T I'UBUSHINO CO., PRINTERS AKD BTBRBOTYPKBR, 8T. PAUL. MINN.

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TABLE OP CONTENTS.

OhMptmr X.

OF NEOOTIABILITT HO FAR AS IT RE-
LATES TO BILLS AND NOTES: Covering
the origin, parpose and indicia of negotiabilr
ity, disUnouon between negotiabilitv and a*-
Blgiiability, and payment hj negotiable Instm-
ment

Ohmjfittat XX»

OF NEGOTIABLE BILLS AND NOTES, AND
THEIR FORMAL AND ESSENTIAL REQ-
UISITES: Coverinff definition, form, and es-
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Olutpter IV.

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various kinds of indorsements, and showing
their requisites and effect.

Chapter V.

OP THE NATURE OP THE LIABILITIES OF
THE PARTIES: Covering liability of mak-
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bilities of accommodatioD and accommodated
parties, estoppel and warranties, and damages
for breach.

Olukptev yim

TRANSFER: Covering definition, TaUdity, snd
various methods of transfer, and status of
overdue paper.

OluiptMP VH.

DEFENSES AS AGAINST PURCHASER FOR
VALUE WITHOUT NOTICE: Covering tb«
■ubjeot generally and f oUy.

OhMptmr VUl.

THE PURCHASER FOR VALUE WITHOUT
NOTICE: l^lalning who are, and disciw-
ing consideration, good faith, notloe, overdoe
paper, presumption, and burden of proof, etc

Oliapter

OF PRESENTMENT AND NOTICE OF DIS-
HONOR: Covering presentment for accept-
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tioe of dishonor, waiver, eta

Ohaptwp X.

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TABIiB OF CONTENTS.

OHAPTBR I.

DBjriTflTlON OF CRIME: The nature of crime
and ground of punishment.

CHAPTER H.

CRIMINAL LAW : How the criminal law is pre-
Bcribed; the common law: statutes, and the
powers of state and federal legislatures.

CHAPTER m.

CLASSIFICATION OF CRIMES: As treason, f el-
onies, misdemeanors, etc. ; merger of offenses.

CHAPTER rV.

THE MENTAL ELEMENT IN CRIME: Con-
sidering tbe will, intention, motive, and crim-
inal intention or malice.

CHAPTER V.

PERSONS CAPABLE OF COMMITTING CRIME:
Covering also exemption from responsibility,
and discussing infancy, insanity, drunkenness,
ignorance or mistake of law or of fact, provo-
cation, necessity and compulsion, married wo-
men and corporations.

CHAPTER VI.

PARTIES CONCERNED: Covering effect of
joining in criminal purpose, principles in first
and seoond degrees, accessories befbre and
after the fact, terms "aider and abettor "and
<• accomplice. **

CHAPTER Vn.

THE OVERT ACT: Covering also attempts, so-
licitation and conspiracy.

CHAPTER Vm.

OFFENSES AGAINST THE PERSON: Cover-
ing homicide, murder, and manslaughter, with
consideration of the different degrees, acci-
dent, self-defense, eta

CHAPTER IX.

OFFENSES AGAINST THE PERSON (Contin-
ned) : Covering afbortion, mayhem, rape, sod-
omy, seduction, assaults, false imprisonment,
kidnapping, abduction.

CHAPTER X.

OFFENSES AGAINST THE HABITATION:
Covering arson and burglary.

CHAPTER XI.

OFFENSES AGAINST PROPERTY: Covering
larceny, embeszlement, cheating at common
law and by false pretenses, robbery, receiving
stolen goods, malicious mischief, forgery, stc.

CHAPTER XH.

OFFENSES AGAINST THE PUBLIC HEALTH,
MORALS, ETC. : Covering nuisances in gen-
eral, bigamy, polygamy, adultery, fornication,
lewdness, eta

CHAPTER XHL

OFFENSES AGAINST PUBLIC JUSTICE AND
AUTHORITY: Covering barratry, obstruct-
ing Justice, embracery, prison breach, mispri-
sion of felony, compounding crime, perjury,
bribery, misconduct in offioe, eta

CHAPTER XIV.

OFFENSES AGAINST THE PUBLIC PEACE:
Covering dueling, unlawful assembly, riot,
affray, lorcible entry and detainer, libels on
private persons, eta

CHAPTER XV.

OFFENSES AGAINST THE GOVERNMENT:
Covering treason and misprision of treason.

CHAPTER XVL

OFFENSES AGAINST THE LAW OF NA-
TIONS: As piracy.

CHAPTER XVU.

JURISDICTION: Covering territorial limits of
states and United States, jurisdiction as deter-
mined by locality, federal courts and the com-
mon law, jurisdiction conferred by congress,
persons subject to our laws, eta

CHAPTER XVni.

FORMER JEOPARDY: In general.

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CHAPTER I.

CONTRACT IN OE27ERAL: Coverinff Ito defl-
nltioD, Datnre, and requisites, and discassing
agreezDent, obligation, promise, void, Toidable,
and unenforceable agreements, and the essen-
tials of contract, eta

OEEAPTBR n.

OFFER AND ACCEFTANCB: GoTerlng lm»

plied contracts^ necessity for communication
and acceptance, character, mode, place, time,
and effect of acceptance, reTocation, and lapse
of offer, eta

OHAFTBR UL

CLASSIFICATION OF CONTRACTS: Cover-
ing contracts of record and contracts under
seal, and their characteristics.

GHAPTBR IV.

REQUIREHENT OF WRmNG: CoYering also
statute of frauds, and discussing promise by
executor, promise to answer /or another,
agreements in consideration of marriage and
in relation to land, and agreements not to be
performed within a year, suiBcienQy of memo-
randum, eta

GHAPTBR V.

CONSIDERATION: CoYcring the necessity for
consideration, its adequacy, reality, and legal-
ity, failure of consideration, eta

CHAPTER VI.

CAPACITY OF PARTIES: Covering political
and professional status, infants. Insane and
drunken persons, married women, and corpo-
rations.

CHAPTER VH.

REALITY OF CONSENT: Coverlnir mistake,
misrepresentation, fraud, duress, and undue
influenoa.

CHAPTER Vm.

LBOALITY OF OBJECT: Covering unlawful
agreements in general, agreements in viola-
tion of positive law and those contrary to pub-
lic poliqy, effect of illegality, ooniUot of laws,
eta

CHAPTER IX.

OPERATION OF CONTRACT: Covering the
limits of the contractual relation, assignment
of contracts, whether by act of parties or by
operation of law, joint and several contracts,
eta

INTERPRBTATlON OF CONTRACT: Cover
log the rules relating to evidence, proof of
document, rules of conatruotion, penalties snd
liquidated damages, eta

CHAPTER XX

DISCHARGE OF CONTRACT: Covering dis-
charge lyy agreement, by performance, by
breach, by impossibility of performanoe, by
operation of law, eta, and remedies on bresoh
of oontraot.

AGENCY : Covering the creation of the relation,
its effect and determination, the oapsdty,
rights, and liabiliUes of the parties, eta

CHAPTER Xm.

QUASI CONTRACT: Covering obligations cre-
ated by law upon which an action ez oontrsota
will lie without proof of oontraot in fact, in*
eluding judgments, obligations imposed ty
statute, acts of parties, eta

1 VOL.. 032 PAQESs S3.75 DELIVERED.

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(S^S QB^i^mi^ 3* ^il^ntdn*

5EC0ND EDITION.

TABLE OF CONTENTS.

Chapter I.

FORMS OF ACTION: Covering the nature and
classification of actions, real, personal, and
mixed actions, assumpsit, special and general,
debt, covenant, account or account rendered.

Ol&apter H.

FORMS OF ACTION (Continued): Covering
trespass, trover, case, detinue, replevin, eject-
ment, writ of entry, forcible entry and detain-
er, etc

Cluipter m.

THE PARTIES TO ACTIONS : Covering actions
in form ox contractu and ex delicto, and the
consequences of misjoinder or nonjoinder of
parties plaintiff or defendants

Cluiptev IV.

THE PEOCBEDINGS IN AN ACTION: Cover-
ing process, the summons, writ of attachment,
appearance, the declaration, demurrer, and va-
riouS:pleas, amendments, etc., the verdict, and
proceedings after the verdict, the judgment,
and proceedings thereafter to the writ of exe-
cution.

Oliapter V.

THE DECLARATION: Statement of cause of
action in general; form of declaration; es-
sential averments of declaration in special as-
sumpsit or on common counts, in debt, cove-
nant^ account, case, detinue, trover, trespass,
replevin, ejectment, and trespass for mesne
profits after ejectment.

Cliapter VI«

THE PRODUCTION OF THE ISSUE: Discuss-
ing the rules, and covering the demurrer, the
f>leadings, the traverse, forms of the general
Bsue and of the special traverse, protesta-
tions, exceptions, issues in fact and law, etc.

Chapter

MATERIALITY IN PLEADING: Covering the
general rule, variance, limitation of traverse,.

etc.

Cliapter VIH.

SINGLENESS OR UNITY IN PLEADING : Cov-
ering the rules in general, duplicity, immate-
rial matter, inducement, protestation, conse-
quences of duplicity and of misjoinder, plea
and demurrer, etc.

Chapter

CERTAINTY IN PLEADING: Covering the
venue, time, quantity, quality, and value,
names of persons, showing title and authoiv
ity, with subordinate rules, and special re-
quirements in different stages.

Chapter X,

CONSISTENCY AND SIMPLICITY IN PLEAD-
ING : Covering insensibility, repugnancy, am-
biguity, argumentative pleadings, pleadings
in alternative, positive statements, leg^leifect^
conformance to precedent, commencement and
conclusion.

Chapter

DIRECTNESS AND BREVITY IN PLEADING:
Covering the rules generally, departure, pleas-
amounting to general issue, surplusage, etc.

Chapter XII.

MISCELLANEOUS RULES: Covering con-
formance to process, alleging damages and
production of suit, order of pleading, defense,
plea in abatement, dilatory pleas, etc.

APPENDIX: Forms.

This book embodies such of the rules and principles of Common-Law Pleading as are still
recognized and applied in this country. A knowledge of the common-law system is of advantage, i£
indeed, it is not essential, to a thorough understanding of both code and equity pleading.

ONE VOLUME, 615 PAGES, $3.75, DELIVERED.

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Author €f Black's Law Dictionary, Treatbtt
oa Judsmonta, Tax TItiea, etc.

TABLE OF CONTENTS.

Cliapter I.

DEFINITIONS AND GENERAL PRINCIPLES:
CoDsideriDg the meaniDg of **CoDBtitutional"
aod **UDcoD8titutioDal;'* writteD and unwrit-
ten constitutions, bills of rights, right of revo-
lution, political and personal respoosibilities,
etc.

Cluipter ZZ*

UNITED STATES AND THE STATES:
Considering the nature of the American
Union, sovereignty and rights of the states
and of the people, form of government, the
Federal Constitution, etc

QliApter

ESTABLISHMENT AND AMENDMENT OP
CONSTITUTIONS : Containing an historical
introduction, and considering the establish-
ment and amendment of the Federal Constitu-
UoD and of State Constitutions.

Cl&apter IV.

CONSTRUCTION AND INTERPRETATION OP
CONSTITUTIONS: Considering the office
and duty of the judiciary In this direction.

Cliapter V.

THE THREE DEPARTMENTS OP GOVERN-
MENT: Considering the division, limitations
on the departments, political and jodidal
Questions, eta

Cl&apter

THE FEDERAL EXECUTIVE: Oonsiderlog
the election, qualiflcations, impeachment,
compensation and independence of the Presi-
dent, his oath of office, veto power, pardoning
•nd military power, and treaty-makiog power;
vacancy in office,' the cabinet, appointments
to office, presidential messages, diplomatic re-
lations, authority to convene and adjourn cor<
gress, execute the laws, etc.

Chapter VIX.

FEDERAL JURISDICTION: Considering the
jurisdiction, powers and procedure of Federal
courts, removal of causes, the United States
and the states as parties, etc.

Cl&apter Vill.

-THE POWERS OP CONGRESS: Considering
the constitution, organization and government
of congress, its powers, and the limitations
thereon.

Cliapter

INTERSTATE LAW, as determined by the Con-
stitution : Considering its general principles,
the privileges of citizens, interstate extradi-
tion, public acts and judicial proceedings, eio.

Chapter X«

BEPUBLICAN GOVERNMENT GUARANTIED.

Cl&apter XZ*

EXECUTIVE POV^ER IN THE STATE&

Cl&apter ZII.

JUDICIAL POWERS IN THE STATBS: Con-
sidering the system of courts, judges, juris-
diction, process and procedure.

Cl&apter

LEGISLATIVE POWER IN THE STATES : Con-
sider! ng the organization and government of
legislature, limitation and delegation of legis-
lative powers, enactment of laws, eto.

Cl&apter

THE POLICE POWER: Considering the poUos
power as vested in congress and in the states,
and Its scope and limitations.

Cl&apter XT*

THE POWER OF TAXATION: Considering
the purposes of taxation, independence of
Federal and State governments, limitations on
power, taxation and representation, etc

Cluipter XVI.

THE RIGHT OF EMINENT DOMAIN: Defini-
tion and nature of the power, constitutional
provisions, authority to exercise, public pur-
poae, appropriation to new uses, etc.

Cl&apter XVII.

MUNICIPAL CORPORATIONS: The Batnm,
control, powers, officers and by-laws of m«-
nioipal corporations, eta

Cl&apter XVJJLX.

CIVIL RIGHTS, AND THEIR FROTECHTON
BY THE CONSTITUTION: Considering
rights in general, liberty, due process of law,
vested rights, trial by Jury, etc.

Cl&apter XXX.

POLITICAL AND PUBLIC RIGHTS: Consider-
ing citixenship, right of suffrage, freedom of
speech, right of assembly and petition, etc.

Cl&apter

CONSTITUTIONAL GUARANTIES IN CRIM-
INAL CASES: Considering trial by jury,
rights of accused, jeopardy, bail, ex post iscto
laws, habeas corpus, etc

Cl&apter XXI.

LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS: Considering the obligation
and the impairment of the contract, power of
legislature to contract, remedies on contracts.

Cl&apter XXH.

RETROACTIVE LAWS: Considering the valid itr
of retroactive statutes, curative statutes, etc

1 VOL.. 646 PAGES. S3.75. DELIVERED.

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TABLE OF CONTENTS.

Cl&apter I.

NATURE AND DEFINITION OF EQUITY.

Cluipter ZZ*

PRINCIPLES DEFINING AND LIMITING JU-
RISDICTION : CoDBidering Jurisdiction over i
erimes, adequste legal remedy, complete re-
lief, and multiplicity of suita.

Chaptev m.

THE MAXIMS OF EQUITY: DdBnition and
classification of maxims; the enabling and re-
strictive maxims.

Oluipter IV«

THE DOCTRINES OF EQUITY: Considering
estoppel, election, satisfaction, performance,
and conversion.

Oliapter V.

THE DOCTRINES OF EQUITY (Continued):
Considering conflicting rights of purchasers,
assignees, notice, bona fide purchasers, priori-
ties, eta

Chapter VI.

THE DOCTRINES OF EQUITY (CoNTiirnxD) :
Considering penalties and forfeitures, liqui-
dated damages.

Cliapter VII.

GROUNDS FOR EQUITABLE RELIEF:
sidering accident, mistake, fraud, etc.

Con-

Cliapter Vill.

PROPERTY IN EQUTTY—TRUSTS: Covering
definition, history, and classification of trusts,
charitable trusts, duties and liabilities of trus-
tees, remedies of cestui que trusU eta

Cliaptev IX.

PROPERTY IN EQUITY — MORTGAGES,
LIENS, AND ASSIGNMENTa

Cliapter X.

EQUITABLE REMEDIES : Covering accounting,
contribution, exoneration, subrogation, and
marshaling.

Chapter XI.

EQUITABLE REMEDIES (Continued)! Cov«
ering partition and settlement of boundaries.

Chapter XII.

EQUITABLE REMEDIES (Continubd): Cov-
ering specific performance, and considering
enforceable contracts, grounds for refusing re-
lief, etc.

Cl&apter XIH.

EQUITABLE REMEDIES (Continubd): Cov-
ering injunctions, and considering their Juris-
dictional principles, classes of cases where
remedy may be used, etc.

AND

Chapter

REFORMATION. CANCELL A.TION,
QUIETING TITLE.

Chapter XV.

ANCILLARY REMEDIES : Covering discovery,
bills to perpetuate testimony, interpleader,
receivers, eta

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^ufQor of a ''^nbfiooft of Criminaf &at)9/' (xvS> a

*'g<inWJooft of €onfratf0."

TABLE OF CONTENTS.

Gliapter I.

JURISDICTION : Covering courts of criminal Ju-
risdicUon and venue.

Cluipter ZZ*

APPRBHBNBION OF PERSONS AND PROP-
ERTY : CoTerinff arrest in general, warrants,
extradition, searches and seizures of property,
and taking property from prisoner

Cliapter

PRELIMINARY EXAMINATION, BAIL. AND
CO M MITMENT : Covering right to release on
bail, habaas corpus, the recognisance, release
of sureties, etc

Cliapter IV.

MODE OF ACCUSATION: Covering the Indict-
ment and presentment, information, coroner's
inquisition, time of prosecution, and nolle
prosequi, et&

ClLiipter V.

PLEADING — THE ACCUSATION: Covering
form of indictment in general, the commence-
ment, and the statement of offense and descrip-
tion of defendant.

Ol&apter VI«

PLEADING— THE ACCUSATION (Continued):
Coverinpr allegation of intent, knowledge, etc. ;
technical terms; second or third offense; set-
ting forth writings; description of property
and persons ; ownership.

Chapter

PLEADING— THE ACCUSATION (Continued):
Covering statement of time and place.

Cluipter Vill.

PLEADING— THE ACJCUSATION (Contfnned):
Covering indictments on statutes.

Cl&apter

PLEADING— THE ACCUSATION (Continued);
Covering duplicity, joinder of counts and par-
ties, election, conclusion of indictment, amend-
ment, aider by verdict. et&

Cliapter X.

PLEADING AND PROOF: 0)veri&g varisDce
and conviction of minor and higher offense.

Cl&apter ZI«

MOTION TO QUASH: Covering also arraign-
ment, demurrer, and pleas of defendant.

Cluipter

TRIAL AND VERDICT: Covering time and place
of trial, custody and presenoe of defendant,
bill of particulars, the counsel, judge and jury,
arguments and Instructions, eta

Chapter XIH.

PROCEEDINGS AFTER VERDICT: Covering
motion in arrest of judgment, sentence, new
trial, writ of error, eta

Chapter

EVIDENCE: (fevering facts in issue, motive,
res gesiae, other crimes, declarations, confes-
■ions, character, burden of proof, witneaaOB,
eta

Chapter XV»

HABEAS CORPUa

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TABLE OP CONTENTS.

Cl&aptev I.

FORMATION OF THB CONTRACT: Covering
the capacity of parties, who may sell, the thing
sold, mntaai assent, form, and price.

Cliapter ZZ*

FORMATION OF THB CONTRACT (ConUnued) :
CoTering the statate of frauds.

EFFBCT OF THE CONTRACT IN PASSING
THB PROPBRTY: Covering sales of speoiflo
chattels, — unconditional sales, condition^ sales,
sale on trial or approval, and sale or return.

Oluiptev IV«

EFFKOT OF THE CONTRACT IN PASSING
THB PROPBRTY (Continued) : Covering sales
of chattels not speoinc, appropriation of property
to the contract, reservation of right of disposal,
eta

Cl&apter V*

UI8TAKB, FAILURE OF CONSIDERATION,
AND FRAUD : Showing the effect of misUke,
failure of consideration, and fraud generally,
frauds on creditors, the delivery necessary as
against creditors and purchasers, eta

• Cliapiev Vt,

ILLEGALITY : Covering sales prohthited by the
common law, by publio policy, and by statute;
the effect of illegality, and the conflict of laws.

Cliapter VH*

CONDITIONS AND WARRANTIES! Covering
conditions and war ranties generally.

QliApter VUUL

PERFORMANCB: Covering fully delivery, the
buyer's right of ezaminatiofi, acceptance, and
payment.

Cl&aptev IX.

BIGHTS OF UNPAID SELLER AGAINST THB
GOODS: Covering the seller's lien, stoppage
in transitu, and the right of resala

OliAptev X.

ACTION FOR BREACH OF THB CONTRACT:
Covering the various remedies of the sailer and
of the buyer.

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TABLE OF CONTENTS.

IHT&ODtrCTIOX.

Corerinff the deflnitioD, toarce, and nature of In-
tematlonal Law.

Cl&apter X.

PERSONS IN INTERNATIONAL LAW: Cov-
eriDg states, their loss of identity, Tarioas unions
of states, de facto states, belligerency and recog-
nition thereof, and equality of states.

Cluipter H.

THE COMMENCEMENT OF STATES— FUNDA-
MENTAL RIGHTS AND DUTIES : Covering
tixe commeooement and recognition of new
states, effect of change of sovereignty, the fun-
damental rights and duties of states, eta

Oliapter HI.

TERRITORIAL PROPERTY OF A STATE:
Covering modes of acquiring property, boun-
daries, territorial waters, etc .

Chapter IV*

TERRITORIAL JURISDICTION: Covering ex-
territoriality, sovereigns and diplomatic agents
and their immunities, vessels, right of asylum,
alienage, responsibility for mob violence, extra*
dition, jurisdiction beyond state limits, eta

Chapter V.

JURISDICTION ON THE HIGH SEAS AND
UNOCCUPIED PLACES: Covering nature of
jurisdiction, jurisdiction over merchant ships,
piracy, privateers, letters of marque, slave
trade, etc.

Chapter VI«

THE AGENTS OF A STATE IN INTERNA-
TIONAL RELATIONS : Covering public diplo-
matio agents and consuls, and matters relaUng
to them.

Chapter VII.

INTERVENTION: Covering the subject genera

ally.

Chapter ViUL

NATIONALITY: Covering citizenship, allegi-
ance, expatriation, naturalization, eta

Cliapter IX.

TREATIES: Covering the subject generally.

Chapter X.

AMICABLE SETTLEMENT OF DISPUTES:
Covering mediation, arbitration, retorsion, re-
prisals, embargo, pacific blockade, eta

Chapter ZI.

INTERNATIONAL RELATIONS IN WAR:
Covering the subject of war generally, includ-
ing the kinds, causes, and objects of war.

Chapter

EFFECTS OF WAR—AS TO PERSONS: Cov-
ering the relations of enemies, noncombatants,
privateers, prisoners of war, and the subjects of
ransom, parole, eta

Chapter XIH,

EFFECTS OF WAR — AS TO
Covering contributions, requisitiona, foragii
booty, ransom, and other questiona in re^
to property.

Chapter XIV.

POSTLIMINIUM: The right and Its limitatio
defined and explained.

Chapter XT.

MILITARY OCCUPATION: Covering the M
nition, extent, and effeot of occupation, and %
duties of an occupant.

Chapter

MEANS OF CARRYING ON HOSTTLmE^
Covering the instruments and means of wi^

spies, eta

Chapter XVJUL I

ENEMY CHARACTER: Covering enemies gei
eraily, domicile, houses of trade, property an
transfer thereof, etc.

Chapter XVHL

NON-HOSTILE RELATIONS: Covering com
merda belli, flags of truoe, passports, safe-oos
ducts, truces or armistices, cartels, eta

Chapter

TERMINATION OF WAR: Covering the meth
ods of termination, uti possideUa, treaties o:
peace, conquest, eta

Chapter XX.

OF NEUTRALITY IN GENERAL: NeutraUtj
defined and explained.

Chapter XXI.

THE LAW OF NEUTRALITY BETWEEN BEL
LIGERENT AND NEUTRAL STATES: Cov
ering the rights, duties, and liabilities of neutr&i

states.

Chapter XXTT.

CONTRABAND: Covering the subject generally

Chaptar Xxm.

BLOCKADE : Covering the subjeot generally.

Chapter XXIV.

VISIT AND SEARCH, AND RIGHT OF AN
GARY: Covering those subjects generally.

Giving in full, as in no other single work, the In-
structions for the Government of Armies of tbe
United States in the Field (Lieber) : Papers Car-
ried, or that Ought to be Carried, by Vessels in
Evidence of their Nationality; The Declaratioa
of Paris; The Declaration of St. Petersburg;
The Geneva Convention for the Amelioration of
the Condition of the Sick and Wounded of Ar<
mies in the Field ; The Laws of War on Land,
(Recommended for Adoption by the Institute or
International Law at Oxford, Bept (^1880); snd
The Brussels Conference.

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^ncioi'SScI by the pi'oFeSSO''S-

Vor^ on (g^ffii atib (JXtitu.

Students in the law of negotiable paper are recommended to use this Tolume
k connection with their text-books as a means of review. The two hundred and
s^ven general propositions or summaries of the law, in heavy-faced type, scattered
fi rough the volume, are far preferable for this purpose to any of the so-called
bridgements or quiz books. — Prof. Austin Abbott, on the bulletin board of the
4 . Y. University Law School.

^iaxti on Cnminaf fidtv.

I have used Clark's Criminal Law for class work during the past year, and find
t very well adapted for the purpose. For an elementary book it is suflSciently ex-
ens ive, its statements are clear, and its mode of arrangement and printing render it
tsLsy to use both by the pupil and the instructor. My class have seemed much
pleased with the book, and their success in its study has been very gratifying to me,
3LTid constitutes one of the best recommendations which the work of the author and
publisher could receive. — ^Prof. William C. Robinson, Law Dept, Yale University.

Cfdrft on ComtMdB.

It is the most admirably arranged work on Contracts that has yet appeared.
It will be of great service in the lecture room. — Prof. W. P. Willey, West Virginia
University.

^^i^pttiAn on Common tsAW (pfMMn^.

Mr. Shipman's treatment and head-note arrangement meet my idea exactly. —
Prof. E- F. Johnson, University of Michigan Law Dept

QBfacft on Constititeionaf iAW.

A very hasty examination indicates that the book covers the ground in such a
way as to be of value to students, and I shall recommend it among others to my
class. — Prof. Emlin McClain, Iowa State University.

:Setter on <£^uit;.

I have examined Fetter on Equity, and can state unreservedly that it more
than realizes my expectations. It is a work of real merit. It sets forth the funda-
mental principles of Equity Jurisprudence in a manner so logical in arrangement,
perspicuous in statement and accurate in treatment as to deserve special recogni-
tion and appreciative comment — Prof. Wm. Hoynes, University of Notre Dame.

Cf<irii on Criminaf Q()roc^te.

I cordially and earnestly commend the work as one of unquestionable excel-
lence and as a book which should not only be in the hands of every student, but also
at the elbow of every practitioner. — C. O. Bishop, Lecturer on Criminal Law, St.
Louis Law School.

^tf dn; on ^tcB.

I have just completed an examination of "Tiffany on Sales '* and find it to be
an excellent and useful book well adapted to the use of students wherever a text-
book forms the basis of instruction. The statements of law are .xjade with unusual
clearness and accuracy. — Blewett Lee, Prof, of Law, Northwestern University.

(11)

This series is to comprise concise treatises on all the principal subjects of the
law. The books are made on the same general plan^ in which certain special and
original features are made prominent. These are:

K

1. ^ 0ucdnet dAUmeni of fed^in^ pmcvptu in Sfotft^fetiet tgpe.

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3. ^otee anb aut^rities.

They arc handsomely printed, with a liberal use of black-letter type, published
in regular octavo form, bound in the best law sheep, and sold at the uniform price of

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3<iddAtb on Corts. (2 1M&.)

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1

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3 bias ObS QOA 375