Francis H. (Francis Hermann) Bohlen.

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think of, and a failure to do so, and an attempt to cross the tracks,
might be found by the jury to be negligence, even though he would
have succeeded in getting across safely on the particular occasion
if it had not been for the action of the gatekeeper in wrongfully
lowering the gates. T he act of the driver being a negligent act,
and that act b eing in full f orce and in the verv process of execution
at- the time tHe~a"cCidCtit occurred, which accident would not have
Jiapp£ned^buLiQi_s uch negligent act, the fact that another negligenf"
act of a thir d party contribu ted to tlic happenmg of the accident
— would not abs^vethe hors ecar compam\ The negligent act ot the
horse car driver joined wltH and became a part of the other act in
wrongfully lowering the gates, as described, and both acts consti-
tuted but one cause for the commotion which naturally resulted
therefrom, and on account of both of these acts, as parts of a whole
transaction, the injury occurred.^

Upon an examination of the whole case, we find no error pre-
judicial to either company, and the judgment against both must be

Affirmed.^



' A part of the opinion is omitted.

* See accord, Ashborn v. IVaterbury, 70 Conn. 551 (1898); Nezvcomb v.
R. R., 169 Mo. 409 (1902); Mahony v. R. R., 57 Pa. 187 (1868); Burrell
Toivnship V. Uucaplier, 117 Pa. 353 (1887): Sheridan v. R. R., 36 N. Y. 39
(1867), and Coole}', Law of Torts, 3rd Edition, 1906, p. 90, n. 16.

See as to the existence of anj^ distinction between concurrent and succes-
sive causes — Hcrr v. Lebanon, 149 Pa. 222 (1892), p. 227 — cf. Burrell Tozvn-
shif) V. Uncaplicr, 117 Pa. 353 (1887), P- 363. both per Green, J., on very
similar facts; and see Lake v. Milliken, 62 Me. 240 (1873), and Richer v.
Freeman, 50 N. H. 420 (1870).

The defendant's act is considered an efficient concurring cause if while
it is still in operation and force the injury occurs, unless the same result not
merely might but must have happened had the defendant'sact not been done —
Davis V. Garrett. 6 Bing. 716 (1830) ; B. & P. R. R. v. Rcaney, 42 Md. 117
(1874) — Alvey, J., p. 137; see also Fenner, J., in Reynolds v. T. & P. R. R.,
27 La. Ann. 694 (1885), p. 698: "where the negligence of the defendant greatly
multiplies the chances of accident to the plaintiff, and is of a character natur-
ally leading to its occurrence, the mere possibility that it might have hap-
pened without the negligence is not sufficient to break the chain of cause and
effect between the negligence and the injury" (plaintiff fell down badly
lighted stairs ; defendant contended that she might have fallen even had they
been well Hsrhted>, but see Taylor v. Vonkers. 10=; N. Y. 202 ('1887') where,
citing Ring v. Cohoes. 71 N- Y. 83-88 (1879) and Searles v. R. R.. loi N. Y.
661 (1886, a case not of concurrent but alternative causes"), it was held that
since plaintiff must show that had it not been for defendant's fault he would
not have been injured — he could not recover for injuries received from step-
ping upon ice upon a pavement negligently built on a slope; ace. Laidlav v
Sage, 158 N. Y. 73 (1899), p. lOi.



226 MOORE V. INHABITANTS OF ABBOT



MOORE V. INHABITANTS OF ABBOT.
Supreme Judicial Court of Maine, 1850. 2)^ Maine, 46.

Case, for an injury sustained by the female plaintiff, through
a defect in the highway of the defendant town. She was riding on
the highway in a wagon.

Evidence was introduced to the jury by the respective parties,
as to the existence of the defect, the happening of the injury by
means of it, and as to the care and prudence used by the plaintiffs.
Some evidence tended to show the breaking of a ring in the harness,
at, or just prior to the accident.

Among other legal positions, Shepley, C. J., presiding, in-
structed the jury, that if they should be satisfied the accident hap-
pened by the joint effect of a defect in the way and a defect in the
harness rendering it unsuitable or unsafe, although such defect in
the harness was not known, and the plaintiffs were not in fault for
want of knowledge, the plaintiffs would not be entitled to recover.
To these instructions, the plaintiffs excepted.

Shepley, C. J. : The female plaintiff received a bodily injury
while traveling on a highway, which the defendants w^ere by law
obliged to make safe and convenient. The statute c. 25, §89, pro-
vides, if any person shall receive any bodily injury "through any
defect or want of repair" of such w-ay, he may recover "the amount
of damage sustained thereby."

Persons may be injured while traveling on the highways with-
out being blame-worthy and without the fault of those who are re-
quired to make the ways safe and convenient, or of others. In such
cases the risk is their own. They must bear their own misfortunes.
They cannot call upon others as insurers of their safety.

They may also suffer injury, while traveling upon highways,
which are not safe and convenient, and the injury may not be occa-
sioned by the want of repair, or by their own want of ordinary care
to avoid it. In such case it would be quite clear, that they could
not recover damages of those w^ho were in fault by neglecting to
keep the way safe and convenient. The statute was not designed
to relieve them from damages thus occasionel by making those re-
sponsible, whose duty it was to have repaired the ways.

An injury may also be occasioned by the united effect of a
defect in the way and of some other cause, and in such case the
party injured cannot recover of those whose duty it was to keep
the way in repair, because he does not prove, that the injury was
occasioned through or by reason of such w^ant of repair. To enable
him to recover he should prove that the injurv was thus occasioned,
that is, that it was entirely occasioned through such want of repair ;
for the statute was not intended to impose upon towns the burden
of making compensation for injuries not occasioned by their own
neglect of duty ; was not intended to make them assume any portion
of the risk of traveling not occasioned by their neglect. An injury
cannot be determined to have been occasioned by a defect in the



MOORE V. INHABITANTS Ol" ABBOT 22/

way SO long- as it remains certain, that some other cause contrib-
uted to produce that injury. Such is the law, when the injury is
alleged to have been occasioned by the negligence of another per-
son. And numerous cases show, that the same rule is applicable,
when the action is brought against a town to recover damages for
an injury occasioned by a defect in a highway.

In the case of Knapp v. Salsbury, 2 Camp. 500, Lord Ellen-
borough instructed the jury, "if what has happened arose from
inevitable accident or from the negligence of the plaintiff, to be sure
the defendant is not liable."

In the case of Plushwcll v. Wilson, 5 C. & P. 375, the jury were
instructed, "that if the plaintiffs negligence in any way concurred
in producing the injury, the defendant would be entitled to the
verdict."

In the case of Williams v. Holland, 6 C & P., the jury were
instructed, "if the injury was occasioned partly by the negligence of
the defendant and partly by the negligence of the plaintiff's son, the
verdict could not be for the plaintiff." * '^ *

Is the reason for the rule so thoroughly established, that the
plaintiff cannot recover when the injury was occasioned by the neg-
lect of the defendant, and by his own want of ordinary care, that he
is estopped by his want of ordinary care? By no means; for then
he could not recover, if he was not in the exercise of ordinary care
although it did not in any degree contribute to cause the injury.
The rule deducible from the decided cases is stated in the case of
Kcnnard v. Burton, 25 ]\Iainc, 39; "if the party, by the want of
ordinary care, contributed to produce the injury, he will not be
entitled to recover. But if he did not exercise ordinary care, and
yet did not by th^^aiant^-oi-iL contribute to produce the injur y, he
— wilLia e entitled t Q^jecoyejL" The last position is correct, because
in such case, the sole cause of the injury is imputable to another,
who cannot complain of the neglis^cnce of the plaintiff, which occa-
sioned no injury, produced no effect.

And for the like reason, if the sole cause of the injury was not
imputable to another, the plaintiff would not be entitled to recover,
although it might not be imputable to his own negligence, but to
"inevitable accident."^

In the case of Smith v. Smith, 2 Pick. 621, Parker. C. J. gives
the true reason, why one not in the exercise of ordinary care, can-
not recover against one guilty of negligence ; he says, "and where
he has been careless, it cannot be known, whether the injury is
wholly imputable to the obstruction, or to the party complaining."

* See accord, Shaw, C. J., Marble v. Worcester. 4 Gray, IMass. 395 (iS.t^.O
at p. 397. statin?', as a rule "of general application, that there is no legal liahil-
ity for any harm of which defendant's act is not the sole or at least greatly
preponderating cause, and Biglozc v. Reed. 51 Me. 325 (1863^ where this rule
is stated as applying to action against a man leaving a sleieh nntied in street.
In later IMaine cashes, however, this doctrine is held applicahle only where
"the action is a statutory one against a town, it is not applicahle to a com-
mon law action against an individual", Emery. T.. Neal v. Rendall, 100 Me.
574 (190.0. collision between vehicles; Lake v. MilUkeu. 62 Me. 240 (1873^



228 MOORE r. INHABITANTS OF ABBOT

The conclusion cannot therefore be avoided, that the plaintiff

must prov e, thaL.the Jnjurv was occasioned by the default ontT g *

_defendaaL.aione, ^nd not by that default and some other_ cause_iQr

" w hich, the defendanFTTnofTespo nsiljlg^ without a disregard of the

-wTTole class of cases, which decidetliat the plaintiff cannot^ recover,

when the injury is occasioned by the default of the plaintiff, and of

defendant.

The doctrine, that the plaintiff can only recover when the injury
complained of did not happen by inevitable accident, or by the want
of ordinary care on the part of the plaintiff, or by a combination of
these with the want of repair of a highway, appears to be the only
one consistent with sound reasoning, and to have been generally
received and acted upon. It is difficult to perceive how any other
doctrine can be received, without producing the effect to make towns
liable to pay damages for injuries not proved to have been occa-
sioned by their neglect. No proof can establish that fact, so long
as it appears that some other cause contributed to produce the result.
It was accordingly decided in Libbcy v. Grccnhnsh, 20 Maine, 47,
that "the plaintiff'' had not fully established his right to recover, so
long as this question was left in doubt."

Exceptions overruled."^



■Accord: Moidtov v. Sandford, 51 Ale. 127. Similar statutes are similarly-
construed in Rhode Island, Ward v. Mahogany, 16 R. I. 479, and Massachu-
setts, Marble v. Worcester, 4 Gray, 395 (1855), though the later Massachu-
setts cases modify its doctrine to this extent, that the township is only relieved
from liability where the concurring cause is culpable or abnormal but not if
it be innocent and an ordinary incident of travel, Adams v. Carlisle, 21 Pick.
146 (1838) ; Pratt v. Weymouth, 147 Mass. 245 (1888) ; Hayes v. Hyde Park,
153 Mass. 514 (1892), and Block v. Worcester, 186 Mass. 526 (1904); cf.,
injuries received by plaintiff's act done to avoid peril caused by defective
highway, Flagg v. Hudson, 142 Mass. 280 (1886) ; Liind v. Tyngsborough, 11
Cush. 563 (1853). The plaintiff must be in control of his horse, it is no ex-
cuse that the horse had become unmanageable through no fault of his, Fogg
V. Nahant, 98 Mass. 578 (1867), 106 Mass. 278, see also McKelwin v. London,
2.2 Ont. 70 (1892). But substantially similar statutes are more liberally con-
strued in the other New England States. Connecticut, Baldzvin v. Greenwood
^ Turnpike Co., 40 Conn. 244 (1873); New Hampshire, Winship v. Entield, 42
Qj^,/^^ N. H. 197 ( i860) : !^li£i£_lh£-jtlaiDtifif is in no fault but the injury is the
'" Tcombined lrfiMdL of accident and of the defendant's neglect to repair the road,
"jheJxiisai^ustJae held liable," Sargent, J., p. 217; Hardy v. Keene, 52 N. H.
■^70(1872). Where as is usually the case throughout the United States out-
side of New England, a municipality is liable at common law for defects in
highways, these cases, announcing as they do, a doctrine peculiar to actions
on this' particular class of statute, [see Emery. J., Neal v. Kendall, 100 Me.
574 (1905),] have no weight as authority. But while in general the more
liberal view of Winship v. Enfield, supra, is followed, [City of Lacon v.
Page, 48 111. 499 (1868); Ring v. Cohoes. 77 N. Y. 83 (1879);
Brcnnan v. St. Louis, 92 Mo. 482 (1887). So in England, where the
liability is statutory— j5m// v. Shorcditch, 19 Times. L. R. 64 (1902)] the New
England cases are often cited and discussed as authoritative— D^WT/^r v. Utz-
ler, 38 Col. 300 ("1907); McKelvin v. London. 22 Ont. 70 (1892); and see
Shaffer v. Jackson Twp., 150 Pa. 145 (1892). decided on authority of Hayes
V. Hvde Park, supra, against the current of Pennsylvania decision.

The cases in Pennsylvania are in a state of some confusion due probably
to the influence of the Massachusetts decisions. In Jackson Ttvp. v. Wagner,
127 Pa. 184 (1889), it was held that if the road was not safe for ordinary



WATSON V. KIXDliRKNECHT 229

SECTION 2.
Direct Consequences.



WATSON V. RIXDERKNECHT.

Supreme Court of Minnesota, 1901. 82 Minnesota, 235.

Collins, J. : Civil action to recover damages alleged to have
been sustained by plaintiff by reason of an assault and battery com-
mitted by the defendant. The verdict was for the latter, and from
an order dcn\ing plaintiff a new trial this appeal was taken. * * *

The court also erred in some of its rulings when receiving testi-
mony. The defendant, young and vigorous, received no injuries,
while the plaintiff, a feeble man in the neighborhood of sixty years
of age, was so injured that he was unable to leave his house for
two weeks, and during that time was daily attended by a physician.
In 1863, while serving in the army, he had been injured by the ex-
plosion of a shell, for which injury he was receiving a pension at
the time of the assault and battery. His counsel attempted to show
as part of his case the physical condition he was in just prior to the
assault, arising from this injury, and how and to what extent his
condition had been affected by the acts of the defendant. The court
held this evidence inadmissible at that time, and that it was proper
in rebuttal only. It subsequently ruled that such testimony was in-



travel, the fact that the fright of the plaintiff's horse, however caused, contrib-
uted to the accident did not relieve the township from liability, ace. Mcrkoffcr
V. Macunsie, 71 Pa. 276 (1872); Hey v. Pliila., 81 Pa. 44 (1876); Hart v.
Pittston, 89 Pa. 389 (1873); Burrell Twp. v. Uncapher, -117 Pa. 353 (1887);
Voders V. Amzvell, 172 Pa. 447 (1896); Boone v. Toicnship, 192 Pa. 206
(1899), and Davis v. Snyder, 196 Pa. 273 (1900). Many of the cases in which
the eccentric conduct of a horse out of control, through fright or other causes,
contributing to the accident has been held to relieve the township from lia-
bility, might well have been decided either on the ground that the plaintiff's
own fault had in part at least caused the frght, etc., of his horse, (Herr
V. Lebanon, supra and Willis v. Armstrong, 183 Pa. 184 ('1897') arc so ex-
plained by Green, J., in Boone v. Tivp., 192 Pa. 206 supra) or on the point
held decisive by Williams, J., in Jackson v. Wagner, supra, p. 197. that the
road was "on that day and place in a condition that made it a suitable and
sufficient road for travel conducted in an ordinary manner." If safe for all
normal incidents of travel, the defendants are not negligent in failing to antici-
pate extraordinary accidents of traffic, and in failing to make a road so
perfect that no harm could result therefrom. Herr v. Lebanon. 149 Pa. 222
(1891) ; Kicfer v. Humnielstoicn, 151 Pa. 304 (1892") ; Heister v. Fazcn. 189
Pa. 253 (iSgg') ; Habeeker v. Lancaster, 9 Pa. S. C. 553 (1899') : cf. La Londe
V. Pcakc, 82 Minn. 124 (1901). In determining the extent of the duty of
the municipality the nature and location of the road, the amount of travel
on it and (probably) the financial resources of the municipality must be
considered — Davis v. Snyder, 196 Pa. 273 (1900V

Many cases, however, are susceptible of neither explanation and seem to
be flatly contra to Jackson v. Wagner, supra: Shaeffer v. Jackson, 150 Pa.
145 (1892"), largely based on Haves v. Hyde Park. 153 Mass. ^14 supra and
other cases dealing with the purely statutory liability of Massachusetts towns;
Card V. Columbia. 191 Pa. 254 (1899). and Cage v. Franklin, ir Pa. S. C. 533
(1899"), where a curious distinction is drawn between the acts of a frightened
and of a balkv horse.



230



WATSOX v. RINDERKXECHT



competent for any purpose, and refused to permit plaintiff to show
whether his condition at the time of the trial was due to mjunes for
which defendant was responsible. ....

The burden was upon the plaintiff to prove such of his mjunes
as were the direct and proximate result of defendant's acts, and
in doing this it was proper to show in what respect, and to what
extent, his present condition could be attributed to the assault and
battery, and what could be more properly established as the result
of his' army experience. The injury for which plaintiff was receiv-
ing a pension aft'ected his health and enfeebled him unquestionably,
but that fact would not deprive him of the right to recover the direct
consequences of the defendant's tort, — to recover such damages as
could be shown to be the direct result of that wrong. That the
plaintiff was in ill health, no matter what the cause, was no excuse
for defendant's acts, and would not relieve him from resulting con-
sequences. The defendant could not be held to respond for injuries
arising out of other causes, but as to those for which he was the
efficient cause an action would lie.

The rule is that the perpe t rator of a tort is responsih lft. fniLthe
direcTan d immediate consequenc es thereof,_ w1i'"thfr t^-'^y "'■'^y ^^
rep-arded as n^hix-AUw |iH)1iHlitTr"nr -\vli &tke£lh£j ^might have been
"c onfern pfate dTforeseen. or expected, or not. It is not necessary,
"To" the~naHITtv of a wrong doer, that the result w hich actually fol-
"Tows shoul d have beej i^nticipated-hrl iini. i t 13 Ihe g(jiiei ;d-ufaar-
g tte r o f the act, ari^liorthe general r e sult, that the law p rimarily
regards m tlus connectio n. 8 Am. & Eng. Enc. (2d Ed.), 598, 602,
-ftntl-ra^es"TTte3'! This rule has been adopted in this state in an
action for personal injuries arising out of the negligence of a com-
mon carrier (Pitrccll v. St. Paul City Ry. Co., 48 Minn. 134, 139,
50 N. W. 1034), where it was said:

"But when the act or omission is negligence as to any and all
passengers, well or ill, any one injured by the negligence must be
entitled to recover to the full extent of the injury so caused, with-
out regard to whether, owing to his previous condition of health, he
is more or less liable to injury."

It was error to exclude testimony tending to show that the in-
juries received by the plaintiff in the army had been aggravated, in-
tensified, and increased by reason of the defendant's unlawful act,
and to just what extent. * * *

Order reversed, and a neiv trial granted.^



^Accord: Mann Boudoir Co. v. Dupre, 54 Fed. 646 (C. C. A. sth Circ,
1893), miscarriage by woman, not obviously pregnant, due to illegal expul-
sion from sleeping car; Voshurg v. Putney, 80 Wis. 523 (1891), slight abrasion
of skin wilfully inflicted, led, owing to condition of plaintiff's blood, to loss of

leg.

Accord: Where the defendant's act zvas not wilful or wanton but negli-
gent only: Armstrong v. Montgomery Ry., 123 Ala. 233 (1898), death re-
sulting from slight laceration of hand negligently crushed; Balto. Ry. v.
Kemp. 61 Md. 74 (1883), cancer resulting from slight blow due to negligent
operation of defendant's car; Clifford v. R. /?., Q Col. 333 C1886), paralysis
from negligent exposure; Broicn v. R. R., 54 Wis. 342 (1882), miscarriage



FITZllEklJtKT DE NATURA IIREVIUM 23 1



FITZHERBERT DE NATURA BREVIUM.
Writ de Trespass sur Ic Case (1547). 93 //.

If a man doth distrain any prior's or other prelate's horse,
whereupon he is riding in his journey, for or upon any contract,
debt, or trespass done by him or his predecessor, when he might
have distrained or attached him by other goods or chattels of the
said prior or prelate, then he shall have an action upon the case,
which is such :

If A. prior, etc., put B. etc., to shew wherefore, seeing that it is
_not^ la wfiil tor any persQ ii_to_di strain a prelat e, nobleman, or any
ecclesi astical person of our realm, passmg any whei"C tliroui^h tlie
same rpalm by his proper equipage, by reason of any contract or
debt, when he hath there other beasts and chattels, whereby reason-
able distress may be made upon him ; the aforesaid B. distrained
the said prior passing through the town of C. by reason of a certain
contract between S. formerly prior of, etc., predecessor to the afore-
said prior, and the aforesaid B.. a great while since made, as it is
said, by a certain horse his palfrey, although he could have then
made r easonable distress upon him by other beasts and chattels

"tliprp "nm t - 1 1 1 -1I ; i ";r i itr1iT rl^itninprl thcit pnlfffy f(^|- q l^Hg- I J lll "^ 1 Ij '

which his weighty business, for which he made his passage, were
undone ; and other w-rongs, etc.*

due to over exertion by pregnant woman negligently directed to leave train
three miles from her destination ; contra, Pullman Co. v. Barber. 4 Col. 344
(1878), woman in delicate health forced by tire to leave car, and see Stone,
J., dissenting, Balto. Ry. v. Kemp, 61 ]\Id. S;}.

So zi-'hcre by reason of his ivcakcned physical condition plaintiff is roi-
dcred susceptible to some nezi' and different disease; T. H. & I. R. R. v. Buck,
96 Ind. 346 (1884), p. 349, plaintiff, having received concussion of brain through
defendant's negligence, took malarial fever and died; Beauchamp v. Saginaiv
Co.. 50 Mich. 163 (1883), similar facts, death due to pneumonia; IVieting v.
Millston, yj Wis. 523 (1890), leg, weakened by defendant's negligence, broken
in subsequent accident; see, however, contra (semble), Raymond v. Haver-
hill, 168 Mass. 382 (1897), plaintiff, however, knowing her ankle was weak
attempted to step from a chair on which she was standing to a nearby
"settee"; and Snozv v. R. R., 185 Mass. 321 (1904), similar facts.

See, as to existence of a duty to anticipate presence of abnormally sensi-
tive persons and to take precautions to secure their safety. Holmes, C. J.,
Spade v. R. R., 172 Mass. 488 (1899), p. 491, and Gilfillan,' C. J., Purcell v.
R. R., post p. 104.

5*0 one converting or wrongfully injuring property is responsible for its
actual value though qrcatly enhanced by circumstances unknozni to the
xvrongdocr and not ziithin his reasonable foresight: France v. Gaudet, L. R.
6 Q. B. 190 (1871), wine converted had been sold on exceptionally favorable
terms, cf. Home v. R. R.. L. R. 7 C. P. D. 583 (1872"), breach of contract to
carry goods; Hansen v. St. Paul Gaslight Co., 82 Minn. 84 (1901), defendant
negligently permitting gas to escape into greenhouse and thereby destrnving
part of its contents held liable for value of all contained in it. since they hap-
pened to be only salable as a whole: Etrn v. Luystcr. 60 N. Y. 252 (1875"),
defendant in wrongfully tearing down plaintiffs' house destroyed a sum of
money kept therein without defendant's knowledge.

'See Coke. C. J.. Everard v. Hot>kins. 2 Bulst 332. p. .334. "If the master
sends his ser\ant to pay money for him upon the penalty of a bond ; and in his



232 HARRISON V. BERKLEY

SECTION 3.
Natural, though Indirect Consequences.



HARRISON V. BERKLEY.
Court of Appeals of South Carolina, 1847. i Strobhart, f2^
Tried before Mr. Justice Wardlaw, at Kershaw, Spring Term,

1847.

The following is the Report of the presiding Judge :
This was an action of trespass on the case,, in which the plaintifif
sought to recover damages, for that the defendant, being a shop-
keeper, in violation of the Statute on the subject, and to the wrong
of the plaintiff, sold and delivered ardent spirits to Bob, a slave of