Francis H. (Francis Hermann) Bohlen.

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burns weeds so near the boundary of his own land that damage
ensues to the property of his neighbor, he is liable to an action for
the amount of injury done, unless the accident were occasioned by
a sudden blast which he could not foresee: Turbervill v. Stamp, i
Salk. 13. But put the case of a chemist making experiments with
ingredients, singly innocent, but when combined, liable to ignite ; if
he leaves them together, and injury is thereby occasioned to the
property of his neighbor, can any one doubt that an action on the
case would lie?

It is contended, however, that the learned Judge was wrong in
leaving this to the jury as a case of gross negligence, and that the
question of negligence was so mixed up with reference to what
would be the conduct of a man of ordinary prudence that the jury
might have thought the latter the rule by which they were to decide ;
that such a rule would be too uncertain to act upon ; and that the
question ought to have been whether the Defendant had acted
honestly and bona fide to the best of his own judgment. That, how-
ever, would leave so vague a line as to afiford no rule at all, the
degree of judgment belonging to each individual being infinitelv
various : and though it has been urged that the care which a prudent
man would take, is not an intelligible proposition as a rule of law,
yet such has always been the rule adopted in cases of bailment, as
laid down in Co^i^s v. Bernard, 2 Ld. Raym. 909. Though in some
cases a greater degree of care is exacted than in others, yet in "the
second sort of bailment, viz.. commodatum or lending gratis, the
borrower is bound to the strictest care and diligence to keep the
goods so as to restore them back again to the lender; because the
bailee has a benefit by the use of them, so as if the bailee be guilty
of the least neglect he will be answerable; as if a man should lend
another a horse to go westward, or for a month; if the bailee put
this horse in his stable, and he were stolen from thence, the bailee
shall not be answerable for him: but if he or his servant leave the
house or stable doors open, and the thieves take the opportunity of
that, and steal the horse, he will be chargeable, because the neglect
gave the thieves the occasion to steal the horse." The care taken
by a prudent man has always been the rule laid down ; and as to the

cufitomer i'njnred in a shop; BurchcU v. Hickisson. 50 L. T. Q. B. loi (1880) ;
Johnson v. R. R.. 125 Mass. 75 (1878). Contra, Pickett' v. R. R., 117 N. c!
616 (1895), p. 634, et seq.

*Tlie conciirrinp opinion of P.-irk. T.. and the erenter part of t'l.-it of
Vaiipfhnn. J., n'-e oniincd. Gnsclcc. T.. concurred without giving^ an opini'^n.



196



BEATTY Z'. CENTRAL IOWA R. CO.



supposed difficulty of applying it, a jury has always been able to
say, whether, takmg that rule as their guide, there has been negli-
gence on the occasion in question.

Instead, therefore, of saying that the liability for negligence
should be co-extensive with the judgment of each individual, which
would be as variable as the length of the foot of each individual,
we ought rather to adhere to the rule which requires in all cases a
regard to caution such as a man of ordinary prudence would ob-
serve. That was in substance the criterion presented to the jury in
this case, and therefore the present rule must be discharged.

Vaughax J. The principle on which this action proceeds, is by
no means new. It has been urged that the Defendant in such a
case takes no duty on himself; but I do not agree in that position:
every one takes upon himself the duty of so dealing with his own
property as not to injure the property of others.

Rule discharged.



BEATTY V. CENTRAL IOWA R. CO.
Supreme Court of Iowa, 18S2. 58 Iowa, 242.
Day, J.^ The jury have found specially that the crossing and
its immediate approaches .were in a suitable and safe condition.
They have not found that there was anything negligent or improper
in the manner in which the highway was prepared for the public
travel, between the point of impingement between the railway and
the highway, and the actual crossing. The jury have found that
the cause of the accident was the proximity of the two roads north
of the immediate crossing. Now the defendant cannot be held
liable for the injury vmless it was guilty of some act of negligence.
The mere constructing of a railway in close proximity to a highway,
is not, in itself, an act of negligence. Railways, if constructed at
all, must of necessity, cross over highways. The statute confers
this right. Railways cannot always approach highways at right
angles; if they approach at very acute angles, as they sometimes do,
it is apparent that they must, of necessity, run for some distance
in close proximity to, and almost parallel with them. The mere fact
that they so run, although it may render the use of the highway
less safe, does not of itself constitute negligence upon the part of
the railway company. Such increase of danger is necessarily inci-
dent to, and attendant upon, this improved mode of transportation.
All persons must accept the advantages of this mode of intercom-
munication with the danger and inconveniences which necessarily
attend it ; the price of progress cannot be withheld. The appellant
has argued this case as though the statute required the railway
company should make the highway as safe as before the alteration;
the statute does not so require. Such a requirement, could not, in
the nature of things, be comnlied with. It is not possible thata
highway crossed by a railroad, shall be as safe as before the rail-

* A portion of the opinion is omitted.



BLYTH V. BIRMINGHAM WATERWORKS CO. I97

road was constructed; there will, and always must be, some danger
from collision, and from friylit to animals, which did not exist
before; the statute simply rcqun-es that the highway shall be placed
in as good repair and condition as before the alteration. It is true
the jury have found that the railway company could reasonably
have graded a track for wagons farther to the west of the highway,
and that if the track of the highway had been graded or pushed to
the west line of the highway, the accident would not have happened.
But, it is not found that the failure to grade the highway to the west
line of the highway was negligence on the part of the company,
under the circumstances proved, and we cannot say, as a matter
of law that such failure was negligence. If the railway had ap-
proached the highway at right angles, and been plainly visible for
half a mile before reaching the crossing, it may fairly be assumed
that the accident would not have happened. And yet we cannot say,
as a matter of law, that the railway company was guilty of negli-
gence in not constructing its road in that manner. If deceased had
ridden an old, gentle and well trained horse, instead of a young, spir-
ited and not thoroughly trained one, it may well be assumed that the
accident would not have happened ; yet it would scarcely do to hold
that deceased was guilty of contributory negligence because he rode
a young and spirited horse ; and yet, there would be as much pro-
priety in so holding, as in declaring, as a matter of law, that the
defendant was guihy of negligence because it did not grade the
track for the travel of the west line of the highway. After an
accident has occurred it is generally easy to see how it might have
been avoided. The proper inquiry is not whether the accident might
have been avoided, if the company had anticipated its occurrence in
the manner that it happened, but whether, in the light of all the
existing circumstances ^the compa ny exercised rpa<;nnah1f^ C4^re "and
diligence to gua^fJClgamsiLdangen^ * * No facts have been found
from which we are authorizedto~3ecIare that the company has, as
a matter of law, been negligent. It follows that the court did not
err in rendering judgment for the defendant, and overruling the
plaintiff's motion for judgment upon the special findings.

Affirmed}

BLYTH V. BIRMINGHAM WATERWORKS CO.

In the Court of Exchequer, 1856. 11 Exchequer, 781.

This was an appeal by the defendants against the decision of
the judge of the County Court of Birmingham. The case was tried
before a jury, and a verdict found for the plaintiff for the amount
claimed by the particulars. The particulars of the claim alleged,

'See Libby v. R. R., 85 Me. 34 (1802), p. 44, and Bramwell, B., Cornman
V. Ry., 4 H. & N. 781 (1859), 786, "nothing is so easy as to be wi se aft er the
event ."

^0 evidence that the defendant after the accident took precautions to
prevent its repetition, is not admissible to prove his original conduct negli-
gent. Baran v. Reading Iron Co., 202 Pa. 274 (1902), and cases cited therein.



IQS BLYTH f. BIRMINGHAM WATERWORKS CO.

that the plaintiff sought to recover for damage sustained ' by the
plaintiff by reason of the negligence of the defendants in not keeping
their water-pipes and the apparatus connected therewith in proper
order.

The case stated that the defendants were incorporated by stat.
7, Geo. iv, c. cix, for the purpose of supplying Birmingham with
water.

[Certain sections of the act required them upon laying down a
pipe in any street to fix a sufiicient fire-plug in each street ; to lay
their pipes at least eighteen inches underground ; and to keep their
mains charged with water. All of these provisions had been com-
plied with. The company was not paid for maintaining the plugs,
but the exercise of their privilege under the act was conditional
upon such maintenance.]

The apparatus connected with the fire-plug was as follows : —

The lower part of a wooden plug was inserted in a neck, which
projected above and formed part of the main. About the neck
there was a bed of brickwork puddled in with clay. The plug was
also enclosed in a cast iron tube, which was placed upon and fixed
to the brickwork. The tube was closed at the top by a movable iron
stopper having a hole in it for the insertion of the key, by which the
plug was loosened when occasion required it.

The plug did not fit tight to the tube, but room was left for it to
move freely. This space was necessarily left for the purpose of
easily and quickly removing the wooden plug to allow the water to
flow. On the removal of the wooden plug the pressure upon the
main forced the water up through the neck and cap to the surface
of the street.

On the 24th of February, a large quantity of water, escaping
from the neck of the main, forced its way through the ground into
the plaintiff's house. The apparatus had been laid down 25 years,
and had worked well during that time. The defendants' engineer
stated, that the water might have forced its way through the brick-
work round the neck of the main, and that the accident might have
been caused by the frost, inasmuch as the expansion of the water
would force up the plug out of the neck, and the stopper being
incrusted with ice would not suffer the plug to ascend. One of the
severest frosts on record set in on the 15th of January, 1855, and
continued until after the accident in question. An incrustation of
ice and snow had gathered about the stopper, and in the street all
round, and also for some inches between the stopper and the plug.
The ice had been observed on the surface of the ground for a con-
sid-^rable time before the accident. A short time after the accident,
the company's turncock removed the ice from the stopper, took out
the plug, and replaced it.

The judge left it to the jury to consider whether the company
had used proper care to prevent the accident. He thought, that, if
the defendants had taken out the ice adhering to the plug, the acci-
dent would not have happened, and left it to the jury to say whether



BLYTH t'. lURMINtillAM WATERWORKS CO. I99

they ought to have removed the ice. The jury found a verdict for
tlie plaintiff for the sum claimed.^

Aldekson, B. I am of opinion that there was no evidence to
be left to the jury. The case turns upon tlie question, whether the
facts proved show that the defendants were guiUy of neghgence.
Negh gence is the omission to do som ctliing which ii reasonable man,
guided upon thoje con siderations w hicli ordinarily regulate the con-
duct of human affairs, would do, or (luin- lunclhing whrcha pru-
■^dent and reasohabTe man would not doT The de fendants might have
been liable for negligence, if unintentionally, they omitted to do
that which a reasonable' person would~"trave xtone, or did that
which a person taking reasonable precautions would not have
done. A reasonable man would act with reference to the average
circumstances of the temperature in ordinary years. The defend-
-ants had provided against such frosts as experience would have led
men, acting- prudently, to provide against ; and they are not guilty
• — of negligence, because" Tlieif""pixcliirtTons proved insiffificient agatn^l
"^lie effects of ttieexTix^mFseA^^rTly of the frost of 1855, which pene-
trated to a greater depth than any w hic h ordinarily oc curs_south of
llie polar regions. - Such a state of circumstances constitutes a coh-
tingency.^againsl_wliicli-na4:easonable man can provide. The result
was an accident, for whrch the defendants cannot be held liable.

Martin, B. I think that the direction was not correct, and that
there was no evidence for the jury. The defendants are not re-
sponsible unless there was negligence on their part. To hold other-
wise would be to make the company responsible as insurers.

Bramwell, B. The Act of Parliament directed the defendants
to lay down pipes, with plugs in them, as safety-valves, to prevent
the bursting of the pipes. The plugs were properly made, and of
proper material ; but there was an accumulation of ice about this
plug, which prevented it from acting properly. The defendants
were not bound to keep the plugs clear. It appears to me that the
plaintiff was under quite as much obligation to remove the ice and
snow which had accumulated, as the defendants. However that
iriay be, it appears to me that it would be monstrous to hold the
defendants responsible because they did not foresee and prevent an
accident, the cause of which was so obscure, that it was not discov-
ered until many months after the accident had happened.

Verdict to be entered for tlie defendants.^



* The arguments of counsel are omitted.

* No one is bound to anticipate or provide against extraordinary natural
forces — Sutphen v. Hedden, 67 N. J. L. 324 (1901), fence near highway
strong enough to stand ordinary winds, but thrown down by storm; M. P. R R.
V. Columbia, 65 Kans. 300 (ic)02\ grain doors piled twenty feet from track
blown by gale on to it and derailing train ; McCaulcy v. Logan, 152 Pa. 202
(1892), boat, moored with lashings sufficient to stand any normal current,
swept away in flood. "Legal duty does not require nrecautions acrainst un-
usual and extraordinary events"— Green, J., p. 217: AUcuhcny v. Ziuunc>>uan.
95 Pa. 287 (t88o\ Liberty pole falling on boy standing in street, question for
jury whether pole strong enough to stand ordinary winds; McGrezv v. Stone.



200 MCDOWALL Z'. GREAT WESTERN RAILWAY COMPANY



McDOWALL v. GREAT WESTERN RAILWAY COMPANY/

Ik the King's Bench Division, 1903. L. R. (1902) i K. B., 618; L. R. (1903)

2 K. B., 331.

The jury found as answers to the first three questions put to
them by the Court, that the van was in a safe place and no accident
would have happened unless it had been interfered with by neg-
ligent trespassers; they found also, fourth, that the danger of such
interference was known to the defendants, and, fifth, that the van
should have been placed beyond the catch "points," or switches, and
assessed damages at £175, and the case was adjourned for further
consideration.^

Kennedy, J. For years, according to the defendants' wit-
nesses, they had been troubled by boys playing with and on the
trucks and carriages left stationary at this part of the line. This
portion of the branch is bounded on the one side by a wire fence,
which separated it from some open ground of the defendants, and
on the other side by a field, which was separated from the high road
by a garden. To the knowledge of the defendants boys used to get
into the trucks, and even to unlock the doors of the vans on the
siding, for the purpose either of theft or of amusement. If the de-
fendants knew of this systematic, or, at any rate, very frequent
interference, it does not appear to me to be otherwise than reason-
able for the jury to say that they must be taken to have known, as
one of the risks involved, that the trucks and vans kept in position
on the down grade only by temporary means, which apparently were
easily movable, might, if uncontrolled by the catch-point, cause mis-
chief to the users of the highway. If. as the jury have found, the
risk of interference by trespassers with trucks and vans in this
locality was a risk known to the defendants, and if the consequent
danger of their movement down the incline to the highway was also
a known risk, and if. further, this danger might have been guarded
against by the exercise by the defendants of reasonable care, as the
jury have also found, I can see no legal reasons upon which the



53 Pa. 436 (1866), question for jury whether boat was moored in proper
place.

Compare, as to what constitutes an act of God such as relieves a com-
mon carrier from liability for loss of shippers' goods, Brett, J., Nugent v.
Smith, L. R. I C. P. D. 19 (1875). p. 34, with Cockburn, C. J., same case on
appeal, L. R. i, C. P. D. 423 (1876), p. 434 to 438, and James, L. J.

"In order that a phenomenon should be regarded as 'an act of God' it is
not necessary that it should be unique, that it should happen for the first tim.e :
J t is enough that it is extraor dinary^ ar^l s uch as co iddn^tj^eg^aaa bly be_a rili-
sdc^Jed," JFrv, J., Nitro-PhosplwteCo^^vT^t. Katha-meUocksC o^/L. R. 9 Cfi.
Div. 503 ('1878), p. 515; ace. Lihhy v. M. C. R. R. 85 Me. 3^ (1892). and Sieg-
fried V. So. Bethlehem, 27 Pa. S. C. 456 (1905). n. 463. The previous occur-
rence, however, may be of such a nature as to "imnly the existence of some
natural law by which its recurrence may be inferred," Fry, J., supra. So the
frequent recurrence of so-called extraordinary floods tend to show that they
are only usual through severe freshets. Lihhy v. R. R., supra.

* The facts are restated.



MCDOWALL V. GREAT WESTERN RAILWAY COMPANY 201

defendants can claim immunity merely because the boys were tres-
passers.

I give judgment for the plaintiff for the amount found by the
jury by their verdict.

Appeal from the decision of Kennedy, J.

Francis Williams, K. C, and Denman Benson for the defend-
ants. The learned judge below relied on Clark v. Chambers (1878,
3 O. B. D. ;^2y) ; but in that case, and in every case there cited in
which the defendant has been held liable for an accident caused upon
his property by the intervening act of a third party, there has been
some wrongful, negligent, or careless act on the part of the defend-
ant : Daniels v. Potter (1830, 4 C & P. 262; 34 R. R. 793) ; Bird v.
Holbrook (1828), 4 Bing. 628; 29 R. R. 657). That is the distinc-
tion between the present case and Clark v. Chambers (supra) and
other similar cases to be found in the books.

The jury have found in the defendants' favor that, as the van
was left, it was in a safe position, and that it only became danger-
ous upon the intervention of the trespassers. When a railway com-
pany is using its property in a way sanctioned by statute and guard-
ing against all lawful risk^jl-is-not bound to apprehend, nor to
guard against, the possibility of an unlawful act by a stranger, or
against an accident which no one could have foreseen : Sixth v,
Birmingham Waterworks Co. (1856, 11 Ex. 781); Parker v. City
of Cohoes (1878, 10 Hun (N. Y.) 531 ; 74 X. Y. 610). * * === The
trucks and van were properly and sufficiently braked and coupled.
It may be said that the defendants did not, as they might have
done, leave the trucks and van to the eastward of the catch-point,
so that if they got loose they would be diverted from the highway;
but it is settled that you are not under any obligation to use a par-
ticular contrivance or thing merely because it happens to be upon
your property. There was no obligation on the part of the de-
fendants to guard against such an act as caused the accident here.
Engelhart v. Farrant (1897, i Q. B. 240), which was referred
to by the learned judge, does not support his decision, for there the
Court had not to decide, as it had to decide here, whether the de-
fendant was negligent, but only whether his negligence, which was
admitted, was the cause of the injury.

Arthur Lewis, and E. M. Samson, for the plaintiff.

The defendants had had actual knowledge for years of the mis-
chievous acts committed by boys on this part of their line, and there-
fore should have taken precautions, especially as this part of their
line is, as appears from the evidence, in a populous place.

Vaughan Williams, L. J.^ Was there really any reasonable
evidence to go to the jury, in respect of those findings of the jury,
so far as they are findings, which are against the defendants?

The fourth question was, "Was the danger of such interference
causing injury to persons using the highway known to the defend-



^ Only so much of the opinion of Vaughan Williams, L. J., as deals with
the jury's fourth finding is given.



202 MCDOWALL 7'. GREAT WESTERN' RAILWAY COMPANY

ants at the time when the van was left and kept where it was. and
might it have been sufficiently guarded against by the exercise of
reasonable care and skill on the part of the defendants?" Answer,
"Yes ; it was known and could have been guarded against by the
exercise of reasonable care on the part of the defendants."

Now, let me take that question in two halves. "Was the dan-
ger of such interference causing injury to persons using the high-
way known to the defendants at the time when the van was left
and kept where it was?" Let us see what the facts are here. It
is quite true that the boys had been in the habit of breaking into
the vans or trucks standing on this part of the line and stealing
apples and doing one thing and another; but although it is said
the boys had been doing this for years, there is no evidence that
they ever loosed a van or vehicle before during all that time; and
therefore it seems to me there is nothing in the past history of the
conduct of those boys, as regards vehicles left on the rails at this
point, to lead one to anticipate that they would go and uncouple
a vehicle and let it down the incline as they did in the present
instance.

Under those circumstances it seems to me that there was no evi-
dence to go to the jury upon which they could properly find that
the danger of such interference causing injury to persons using the
highway was known to the defendants at the time when the van
was left and kept where it was, and might have been sufficiently
guarded against by the exercise of reasonable care on the part of the
defendants. There, again, I do not understand what the sugges-
tion is. The suggestion made by the learned counsel for the
plaintiff seems to be that the defendants might have put the van
the other side of the catch-point, and then it could not have gone
down the incline. But it is not true to say absolutely that if the
defendants had done so it could not have gone down the incline.
and it is not true to say that upon the other side of the catch-point
it would have been safe. The truth of the matter is that, if it had
been placed there, all these boys would have had to do was to open
or close, as the case might be, this catch-point and let the van go
by, which would have been a very much simpler operation than that
they went through when they got into the van, of uncoupling and
unbraking the van.

RoMER, L. J. I am of the same opinion. Clearly, as found
by the jury when this train was left where it was by the railway
company, with the precautions taken by them, it was perfectly safe.
It was not left in any condition in which it could be said that there
was any negligence on the part of the railway company under the
circumstances, unless you can find some evidence of negligence by
reason of the evidence relating to the mischievous boys ; in other
words, unless it is plain that the evidence relating to the mischievous
boys turned that act which was otherwise a proper act on the part
of the company into a negligent one. Upon that, having considered