Francis H. (Francis Hermann) Bohlen.

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own£r; that that duty^tended not only to the digging up of the
earth and hauling it away, but to the care of the excavation during
the progress of the work. Whether so leaving the excavation open
to the influx of w^ater was such negligence as would make appel-
lant liable, depends upon circumstances. The circumstances were
left to the jury under an instruction which we think fairly stated
the law. They were told that while appellant could not. in general,
be held liable for injury caused by an unusual and excessive rain,
yet if the rain itself would not have run into the excavation in
sufficient quantity to cause damage, except for the careless and neg-
ligent conduct of appellant in leaving the same exposed to the gath-
ered inflow of water from the street and gutter, appellant might be
liable. We think this was correct law. Suth. Dam., pp. 20-28;
Pittsburg City v. Crier, 22 Pa. St. 54; Higgins v. Dezt'ey, 107 Mass.

* Part of the opinion is omitted.

* Accord: Hclbling v. Cemetery Co.. 201 Pa. 171 (1002), obstruction




Supreme Court of Pennsylvania, 1880. 96 Pennsylvania, 65.

The lessor of the defendant road had constructed an embank-
ment across the mouth of a hollow through which ran a rivulet. A
rain of great violence caused the water dammed up by the embank-
ment to rise so that it swept away the plaintiff's schoolhouse situated
higher up on the brook and carried it over the embankment. The
plaintiff gave evidence tending to show that the culverts in the em-
bankment were insufficient and had been suffered to become clogged
with stones and debris.

The jury found a verdict for the plaintiff, and after judgment
thereon the defendant took a writ of error, alleging that the court
erred inter alia in affirming the plaintiff's points, which are stated
in the opinion.

Green, ].:^ W^t are also of opinion that the court erred in
their answers to the plaintiff's second and third points. In affirming
the first point, the court ruled that: "If there was negligence on the
part of the defendant concurring with the act of God, at the time
plaintift''s loss was sustained, then the defendant is liable, and the
"Tiiry are not bound to inquire whether the loss wouldTiave happened
if the defendant had not been guilty of negligence." As we under-
stand this point, it practically declares that although the act of God
alone, without any negligence of the defendant would have caused
the injury, the jury were not at liberty to consider that fact, if in
reality there was negligence on the part of the defendant concurring
with the act of God. In other words, no matter how terrible, ex-
traordinary and unprecedented were the storm and flood, so that
they alone caused the injury, yet if there was concurring negligence
of the defendant, although it did not produce the injury, and its
absence would not have prevented it, still the defendant would

of inlet to sewer — adjacent property flooded during excessive rainfall; Rife
V. Middletown, 32 Pa. S. C. 68 (1906), insufficient culvert; flooding caused
largely by backing up of stream due to exceptional flood ; Elder v. Lykens
Valley Coal Co., 137 Pa. 490 (1893), act of God accelerated and increased
a harm probable under normal conditions ; an extraordinary flood carried
mine refuse placed within reach of ordinary freshets on to the land of a
lower riparian owner; Salisbury v. Herchcnroder, 106 Mass. 458 (1871),
overhead sign, erected in violation of ordinance, l)lown down by violent
gale; Prussak v. Hutton, 30 App. Div. (N. Y.) 66 (1898), powder maga-
zine, so situate as to be a nuisance, struck by lightning and exploded;
Smith V. Faxon, 156 Mass. 589 (1892), water flooding plaintiff's cellar
"'^-'-.ugh wall negligently built; Needham v. King, 95 Mich. 303 (1893),
fire started at improper place, spread by subsequent high wind ; "a man mav
not tempt the winds and then charge the result to Providence," McGrath,
J.; Brash v. City of St. Louis, 161 Mo. 433 (1901), defective sewer bursting
during extraordinary rainfall; Schzvartz v. Adsit, 91 111. App. 576 (1899),
walls left standing after fire, blown down by gale ; Cf. : Nordheimer v.
Alexander, ig S. C. Canada 248 (1891), similar facts, decided under the
civil code of Lower Canada, modeled on the Code Napoleon.

* The facts are restated and only that part of the opinion which deals
with the affirmance of the plaintiff's points is given.


be liable. The same idea is repeated in the plaintiff's second point,
that if the defendant's negligence in any degree caused the loss,
they would be liable. Now a small pebble in one of the culverts
would in some small degree, impede the course of the water, yet the
doctrine of this point, which the court affirmed, would make the de-
fendant liable for the entire injury, even though a huge avalanche of
water were suddenly launched upon the stream and hurled with irre-
sistible force upon the embankment and culvert in question. Such is
not the law.

We apprehend that the concurring negligence, which, when com-
bined with the act of God, produces the injury, must be such as is in
i tself a real prod ucing cause of the injury, and not_.a merely fanciful
or speculative orlTncroscopic negligence which may not have been in
the least degree th e cause ofth e injury. In other words : If the act
o i -C^l-J'Tft+rr^ pafTl^niar case^was of "such an overwhelming and de-
structive character, as by its own forcc^_an d independently ot Uie par^
ticular negligence alleged or shown, ■pro(\\K^r] the iTiiury7 there
would be no^ liability, though there' were some negiigence in the
maintenance of th e particular struj rture. 'i'o create liablhty~ir"nTOst
have required THe'combincd effect of the act of God and the con-
ri Tfrinp- ncg-li£;^ciK:e to produce-th e i njury. Tlie present case affords a
fair illustration of the reason "for this distinction. The defendant's
witnesses testified that the force and volume of the water were so
very great that it would have required one hundred and twenty such
culverts to pass it off. Hence, if the three culverts were in the most
perfect condition, they would not at all have prevented the injury,
and therefore the fact' that they were somewhat obstructed might be
quite immaterial. If the jury believed this testimony, it might have
had a most important bearing upon their verdict, to the extent even
of inducing them to find in favor of the defendant. But the case was
not put to them in that way, and they had no opportunity of con-
sidering it in that aspect. For these reasons we sustain the second
and fourth assignments of error. Tlie other assignments are not
material and are not considered.

Judgment reversed and venire facias de novo awarded, 2


Supreme Court of ihc United States, 1869. 10 Wallace, 176.
Miller, I. ^ The testimony in the case, wholly uncontradicted,
shows one of "the most sudden, violent, and extraordinary floods ever
known in that part of the country. The tobacco was being trans-

* Accord: Lehigh Bridge Co. v. Lehigh C. & N. Co., 4 Rawle (Pa.) 9
(1833). defendant's bridge hurled by flood against that of plaintiff; Livesey
V. Philadelphia, 64 Pa. 106 (1870). bridge carried by flood onto plaintiff's
land; Siegfried v. So. Bethlehem Bore, 27 Pa. S. C. 456 (190.O. clogged
sewer, adjacent property flooded during violent rain.

* Part of the opinion is omitted.


ported from Salisbury, North Carolina, to ^Memphis, on a contract
through and by several railroad companies, of which defendant was
one. At Chattanooga it was received by defendant, and fifteen miles
out the train was arrested, blocked by a land slide and broken
bridges, and returned to Chattanooga, when the water came over the
track into the car and injured the tobacco.

The second instruction given by the court says that if, while
the cars were so standing at Chattanooga, they were submerged by a
freshet which no human care, skill, and prudence could have avoided,
then the defendant would not be liable; but if the cars were brought
within the influence of the freshet by the act of defendant, and if
the defendant or his agent had not so acted the loss would not have
occurred, then it was not the act of God, and defendant would be
liable. The fifth instruction given also tells the jury that if the
damage could have been prevented by any means wnthin the power
of the defendant or his agents, and such means were not resorted to,
then the jury must find for plaintiff.

In contrast with the stringent ruling here stated, and as ex-
pressive of our view of the law on this point, we cite two decisions
by courts of the first respectability in this country.

In Morrison v. Davis &• Co., 20 Pa., 171, goods being trans-
ported on a canal were injured by the wrecking of the boat, caused
by an extraordinary flood. It was shown that a lame horse used by
defendants delayed the boat, which would otherwise have passed the
place wdiere the accident occurred in time to avoid the injury The
court held that the proximate cause of the disaster was the flood,
and the delay caused by the lame horse the remote cause, and that
the maxim, causa proxima, non remota spectatur, applied as well to
contracts of common carriers as to others The court further held,
that wdien carriers discover themselves in peril by inevitable acci-
dent, the law requires of them ordinary care, skill, and foresight,
which it defines to be the common prudence which men of business
and heads of families usually exhibit in matters that are interesting
to them —■-■ .^— —

In Denny v. Nezv York Central Railroad Co., 13 Gray, 481, the
defendants were guilty of a negligent delay of six days in transport-
ing wool from Suspension Bridge to Albany, and while in their depot
at the latter place a few days after, it was submerged by a sudden
and violent flood in the Hudson River. The court says that the
flood w^as the proximate cause of the injury, and the delay in trans-
portation the remote one ; that the doctrine we have just stated gov-
erns the liabilities of common carriers as it does other occupations
and pursuits, and it cites with approval the case of Morrison v. Davis
& Co.

Of the soundness of this principle we are entirely convinced, and
it is at variance wnth the general groundwork of the court's charge
in this case.

As the case must go back for a new trial, there is another error
which W'C rnust notice, as it might othervvise be repeated. It is the
third instruction given by the court, to the effect that if defendant


had contracted to start with the tobacco the evening before, and the
jury believe if he had done so the train would have escaped injury,
then the defendant was liable. Even if there had been such a con-
tract, the failure to comply would have been only the remote cause
of the loss.

But all the testimony that was given is in the record, and we
see nothing from which the jury could have inferred any such con-
tract, or which tends to establish it, and for that reason no such
instruction should have been given.

Judgment reversed and a new trial ordered. ^

'Accord: St. Louis, etc., R. R. v. Commercial Ins. Co., 139 U. S. 223
(1890); Martin v. R. R., 55 Ark. 510 (1892); Moffatt v. R. K., 113 Mo..
App. 544 (1905), but cf. Pruitt v. R. R., 62 Mo. 527 (1876); Daniels v.
Ballcntine, 23 Ohio 532 (1872); Herring v. R. R., lOi Va. 778 (1903), all
cases where defendants were carriers of goods; McClary v. R. R., 3 Neb. 44
(1873), defendant, a carrier of passengers, not liable to passenger in-
jured through blowing over by violent gale, of delayed train, but see
Wabash R. R. v. Sharpe, 76 Neb. 424 (1906), carrier of goods liable to
shipper for destruction by flood of delayed goods; here, however, the delay
was persisted in after notice had been given by the U. S. Weather Bureau of
probable floods; Cf. Pinkerton v. R. R., 117 Mo. App. 288 (1906), and
Dubuque Wood Co. v. Dubuque, 30 Iowa 176 (1870), plaintiff's wood, piled
on a levee, the removal of which was delayed and prevented by the im-
passable condition of defendant's bridge, was carried away by a flood.

Contra, R. R. v. Gidley, 119 Ala. 523 (1898), goods destroyed by fire dur-
ing delay; Wald v. R. R., 162 III. 54S (1896), passenger's luggage, shipped by
train later than that he was himself on. lost in Jolinstown flood: Cassilay v.
Young & Co., 4 B. Mon. 265 (Ky., 1843) ; Catnpbcll v. Morse, Harper, 468
(S. C. 1824) carrier's wagon stalled in a ford caught by freshet; Meyer v.
R. R., 41 La. Ann. 639 (1889), decided largely on the ground that the cotton
burned was insured while in shippers gin house but not while in transit:
Cf. Daniels v. Ballcntine, supra, and Eric R. R. v. Star & Crescent Milling
Co.. 162 Fed. 879 (C. C. A., 7th circ, 1908); Bibb Broom Co. v. R. R., 94
Minn. 269 (1905) ; Read v. Spaulding, 30 N. Y. 630 (1864) ; Michaels v. R. R.,
30 N. Y. 564, and Condict v. R. R., 54 X- Y. 500 (1873^-

Where delay in shipment exposes inflammable goods, such as cotton, to
obvious risk of accidental fire the carrier is liable; M. K. & T. R. R. v.
McFaddcn & Bro., 89 Tex. 137 (1896), or where after notice of the danger
the goods are lost by subsequent delay or other misconduct, Wabash R. R.
V. Sharpe. supra; Deming v. Merchants, Etc.. Co.. 90 Tenn. 306, p. 353
(1891), couplings of train broke while cars w^ere being removed from burn-
ing freight yard; B. & O. R. R. v. Keedy, 75 Md. 320 (1892). failure to re-
move cars from flooded tracks; Pinkerton v. R. R., supra.

See, as to delay exposing goods to risks excepted in bill of lading or
charter party; Hoadlcy v. Northern Transportation Co., 115 Mass. 304
(1874), carrier not liable; Contra, Condict v. R. R., and Eric R. R. v. Star
& Crescent Co., supra; and as to damage to cargo sustained through acci-
dental causes or "act of God" while vessel is wilfully deviating from agreed
voyage; Davis v. Garrett. 6 Bing. 716 (Eng., 1830), and Phillips v. Brig-
ham, Kelley & Co., 26 Ga. 617 (1859).


(b) Instinctive Acts of Human Beings and Animals.


/;; the Common Picas, 1772. 2 William Blackstonc, 892.

Trespass and assault for throwing, casting and tossing a lighted
squib, at and against the plaintiff, and striking him therewith on the
face, and so burning one of his eyes, that he lost the sight of it,
whereby, &c.

On not guilty pleaded, the cause came on to be tried before
Nares Justice last Summer Assises at Bridgwater, when the jury
found a verdict for the plaintiff with 100/. damages, subject to the
opinion of the court on this case.

On the evening of the fair-day at Milbourne-Port, 28th Octo-
ber, 1770, the defendant threw a lighted squib, made of gunpowder,
etc., from the street into the market house, which is a covered build-
ing, supported by arches, and enclosed at one end, but open at the
other, and both the sides, where a large concourse of people were
assembled; which lighted squib, so thrown by the defendant, fell
upon the standing of one Yates, who sold gingerbread, etc. That
one Willis instantly, and to prevent injury to himself and the said
wares of the said Yates, took up the said lighted squib from off the
said standing, and then threw it across the said market house ; when
it fell upon another standing there of one Ryall, who sold the same
sort of wares ; who instantly, and to save his own goods from being
injured, took up the said lighted squib from off the said standing,
and then threw it to another part of the said market house, and in
so throwing it struck the plaintiff then in the said market house in
the face therewith, and the combustible matter then bursting, put
out one of the plaintiff's eyes.

Qu. If this action be maintainable?

This case was argued last term by Glyn for the plaintiff and
Eurland for the defendant ; and this term, the Court being divided
in their judgment, delivered their opinions seriatim.

Nares Justice was of opinion, that trespass would well lie in
the present case. That the natural and probable consequence of the
act done by the defendant was injury to somebody, and therefore
the act was illegal at common law. And the throwing of squibs
has by statute W. 3 been since made a nuisance. Being therefore
unlawful, the defendant was liable to answer for the consequences,
be the injury mediate or immediate. 21 Hen. 7, 28, is express that
mains animus is not necessary to constitute a trespass. So, too, i
Stra. 196; Hob. 134: T. Jones 205; 6 Edw. 4, 7, 8 ; Fitzh. Trespass,
1 10. The principle I go upon is what is laid down in Reynolds and
Clark, Stra. 634, that if the act in the first instance be unlawful,
trespass will lie. Wherever therefore an act is unlawful at first,
trespass will lie for the consequences of it. So in 12 Hen. 4. Tres-
pass lay for stopping a sewer with earth, so as to overflow the plain-


tiff's land. In 26 Hen. 8, 8, for going upon the plaintiff's land to
take the boughs off' which had fallen thereon in lopping. See also
Hardr. 60; Reg. 108, 95 ; 6 Edw. 4, 7, 8; i Ld. Raym. 272 ; Hob. 180;
Cro. Jac. 122, 43 ; 1". N. B. 202, 91, g. I do not think it necessary to
maintain trespass, that the defendant should personally touch the
plaintiff; if he docs it by a mean it is sufficient. Qui facit per aliud
facit per sc. He is the person, who, in the present case, gave the
mischievous faculty to the squib. That mischievous faculty re-
mained in it till the explosion. No new power of doing mischief was
communicated to it by Willis or Ryal. It is like the case of a mad
ox turned loose in a crowd. The person who turns him loose is
answerable in trespass for whatever mischief he may do. The inter-
mediate acts of Willis and Ryal will not purge the original tort in
the defendant. But he who does the first wrong is answerable for
all the consequential damages. So held in the King and Huggins,
2 Ld. Raym. 1574; Parkhurst and Foster, i Ld. Raym. 480; Rose-
well and I'rior, 12 Mod. 639. And it was declared by this Court in
Slater and Baker, M. 8, Geo. 3, 2 Wilf. 359, that they would not look
with eagle's eyes to see whether the evidence applies exactly or not
to the case: but if the plaintiff has obtained a verdict for such dam-
ages as he deserves, they will establish it if possible.

Blackstone Justice was of opinion, that an action of trespass did
not lie for Scot against Shepherd upon this case. He took the set-
tled distinction to be, that where the injury is immediate an action
of trespass will lie; \vher_e_i.t is only consequential, it must be an
action on the case. Reynolds and Clarke, Ld. Raym. 1401 ; Stra.
634;"Hawafd and Banks, Burr. 11 14; Harker and Birbeck, Burr.
1559. The lawfulness or unlawfulness of the original act is not the
criterion ; though something of that sort is put into Lord Raymond's
mouth in Stra. 635, where it can only mean, that if the act then in
question, of erecting a spout, had been in itself unlawful, trespass
might have lain; but as it w^as a lawful act (upon the defendant's
own ground) and the injury to the plaintiff only consequential, it
must be an action on the case. But this cannot be the general rule,
for it is held by the court in the same case, that if I throw a log of
timber into the highway, (which is an unlawful act) and another
man tumbles over it, and is hurt, an action on the case only lies, it
being a consequential damage; but if in throwing it I hit another
man, he may bring trespass, because it is an immediate wrong.
Trespass may sometimes lie for the consequences of a lawful act.
If in lopping mv own trees a bough accidentally falls on my neigh-
bor's ground, and I go thereon to fetch it, trespass lies. This is the
case cited from 6 Ed. 4, 7. But then the entry is of itself an imme-
diate wrong. And case will sometimes lie for the consequence
of an unlawful act. If by false imprisonment I have a special dam-
age, as if I forfeit my recognizance thereby, I shall have an action
on the case. Per Powel Justice, 11 Mod. t8o. Yet here the original
act was unlawful, and in the nature of trespass. So that lawful or
unlawful is quite out of the case; the solid distinction is between
direct or immediate injuries on the one hand, and mediate or conse-
quential on the other. And trespass never lay for the latter.


If this be so, the only question will be, whether the injury which
the plaintiff suffered was immediate or consequential only, and I hold
it to be the latter. The original act was as against Yates a trespass ;
not as against Ryal, or Scot. The tortious act was complete, when
the squib lay at rest upon Yates's stall. He, or any bystander had,
I allow, a right to protect themselves by removing the squib, but
should have taken care to do it in such a manner as not to endamage
others. But Shepherd, I think is not answerable in an action of
trespass and assault for the mischief done by the squib in the new
motion impressed upon it, and the new direction given it, by either
Willis or Ryan ; who both were free agents, and acted upon their
own judgment. This differs it from the cases put of turning loose
a wild beast or a madman. They are only instruments in the hand
of the first agent. Nor is it like diverting the course of an enraged
ox, or of a stone thrown, or an arrow glancing against a tree ; be-
cause there the original motion, the Vis impressa, is continued
though diverted. Here the instrument of mischief was at rest, till
a new impetus and a new direction are given it, not once only, but
by two successive rational agents.

But it is said, that the act is not complete, nor the squib at rest,
till after it is spent or exploded. It certainly has a power of doing
fresh mischief, and so has a stone that has been thrown against my
windows, and now lies still. Yet if any person gives that stone a
new motion, and does farther mischief with it, trespass will not lie
for that against the original thrower.

No doubt but Yates may maintain trespass against Shepherd.
And, according to the doctrine contended for, so may Ryal and
Scot. Three actions for one single act ! nay it may be extended in
infinitum. If a man tosses a football into the street, and, after
being kicked about by lOO people, it at last breaks a tradesman's
windows ; shall he have trespass against the man who first produced
it? Surely only against the man who gave it that mischievous

But it is said, if Scott has no action against Shepherd, against
whom must he seek his remedy? I give no opinion whether case
would lie against Shepherd for the consequential damage ; though,
as at present advised, I think upon the circumstances it would. But
I think, in strictness of law, trespass would lie against Ryal, the
immediate actor in this unhappy business. Both he and Willis have
exceeded the bounds of self-defence, and not used sufficient circum-
spection in removing the danger from themselves. The throwing
it across the market house, instead of brushing it down, or throwing
out of the open sides into the street, (if it was not meant to con-
tinue the sport as 'tis called) was at least an unnecessary and in-
cautious act. Not even menaces from others are sufficient to justify
a trespass against a third person. Much less a fear of danger to
either his goods or his person: — nothing but inevitable necessity.
Weaver and Ward, Hob. 134: Dickenson and Watson, T. Jones,
205 ; Gilbert and Stone, Al. 35, Styl. 72. So in the case put by
Brian Justice and assented to by Littleton and Cheke Chief Justice


and relied on in Raym. 467. If a man assaults me, so that I cannot
avoid him, and I lift up my staff to defend myself, and in hfting
it up, undesignedly hit another who is behind nie, an action lies by
that person against mc;.and yet I did a lawful act, in endeavoring
to defend myself. But none of these great lawyers ever thought
that trespass would lie by the person struck against him who first
assaulted the striker.

The cases cited from the Register and liardres are all of imme-
diate acts, or the direct and inevitable effects of the defendant's
immediate acts. And I admit that the defendant is answerable in
trespass for all the direct and inevitable effects caused by his own
immediate act? But what is his own immediate act? The throwing
the squib to Yates's stall. Had Yates's goods been burnt, or his