Francis H. (Francis Hermann) Bohlen.

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person injured, Shepherd must have been responsible in trespass.
But he is not responsible for the acts of other men. The subsequent
throwing across the market house by Willis, is neither the act of
Shepherd, nor the inevitable eft'ect of it. Much less the subsequent
throwing by Ryal.

Slater and Barker was first a motion for a new trial after ver-
dict. In our case the verdict is suspended till the determination of
the court. And though after verdict the court will not look with
eagle's eyes to spy out a variance ; yet, when a question is put by
the jurv upon sucli a variance and it is made the very point of the
cause, the court will not wink against the light, and say that evi-
dence, which at most is only applicable to an action on the case,
will maintain an action of trespass. 2. It was an action on the case
that was brought; and the court held the special case laid to be
fully proved. So that the present question could not arise upon
that action. 3. The same evidence that will maintain trespass,
may also frequently maintain case, but not e converso. Every ac-
tion of trespass with a per quod includes an action on the case. I
may bring trespass for the immediate injury, and subjoin a per
quod for the consequential damages ; — or may bring case for the con-
sequential damages and pass over the immediate injury, as in the
case from 11 Mod. 180, before cited. But if I bring trespass for an
immediate injur}-, and prove at most only a consequential damage,
judgment must be for the defendant. Gates and Bailey, Tr. 6 Geo.
3, 2 Wilf. 313.

It is said by Lord Raymond, and very justly, in Reynolds
and Clarke, "We must keep up the lx)undaries of actions, otherwise
we shall introduce the utmost confusion." As I therefore think no
immediate injury passed from the defendant to the plaintiff, and
without such im'metliate injury, no action of trespass can be main-
tainetl. I am of opinion that in this action judgment ought to be for
the defendant.

Gould Justice was of the same opinion with Xares Justice, that
this action was well maintainable. The whole difficulty lies in the
form of the action, and not in the substance of the remedy.^ The



^And so, Richer v. Freeman, 50 X. H. 420 (1870^ plaintiff a school



2/0 SCOTT V. SHEPHERD

line is very nice between case and trespass upon these occasions ; I
am persuaded there are many instances wherein both or either will
lie. I agree with brother Nares, that wherever a man does an un-
lawful act, he is answerable for all the consequences ; and trespass
will lie against him, if the consequence be in nature of trespass.^
But. exclusive of this, I think the defendant may be considered in
the same view, as if he himself had personally thrown the squib in
the plaintiff's face. The terror impressed upon Willis and Ryal
excited self-defence, and deprived them of the power of recollec-
tion. What they did was therefore the inevitable consequence of
the defendant's unlawful act. Had the squib been thrown into a
coach full of company, the person throwing it out again would not
have been answerable for the consequences. What Willis and Ryal
did, was by necessity, and the defendant imposed that necessity
upon them. As to the case of the football, I think that if all the
people assembled act in concert, they are all trespassers ; i. from the
general mischievous intent; 2. from the obvious and natural conse-
quences of such an act. Which reasoning will equally apply to the
case before us. And that action of trespass will lie for the mis-
chievous consequences of another's act, whether lawful or unlawful,
appears from their being maintained for acts done in the plaintiff's
own land. Hardr. 60, Courtney and Collett, Ld. Raym.

I shall not go over again the ground which Brother Nares has
relied on and explained, but concur in his opinion, that this action is
supported by the evidence.

De Grey Chief Justice.

This case is one of those wherein the line drawn by the law
between actions on the case and actions of trespass is very nice and
delicate.

Trespass is an injury accompanied with force, for which an
action of trespass vl et arijiis lies against the person from whom it
is received. The question here is, whether the inju r y receiy edby
the plaintiff arises'from the force of t he original act of thedeTend-
fonOZn ew force by a third~person :



I agree with my Brother Blackstone as to the principles he has
laid down, but not in his application of those principles to the pres-
ent case. The real question certainly does not turn upon the lawful-
ness or unlawfulness of the original act. For actions of trespass
will lie for legal acts when they become trespasses by accident. As
in the cases cited of cutting thorns, lopping of a tree, shooting at a



boy was swun^s: violently round two or three times by defendant, an older
schoolmate; being let go he was propelled against other boys in the rame
passageway who pushed him each off himself and on to another and so in
time he was thrown against a coat hook and severely injured. See Reynolds
V. Pierson, 29 Ind. App. 273 (1902).

*Tt is immaterial whether the defendant's act is intentionally harmful or
negligent, if the injury is direct in either case trespass lies — Richer v. Free-
man (supra) p. 430. Nor is a negligent wrongdoer the less liable "for all the
consequences," than is one guilty of wanton misconduct nor is the liability less
where the action brought is case rather than trespass — Isham v. Dow, 70 Vt.
588 (1898), p. S90.



TUTTLE V. ATLANTIC CITY RAILROAD COMPANY 2Jl

mark, defending oneself by a stick which strikes another behind,
etc. — They may also not lie for the consequences even of illegal
acts, as that of casting a log in the highway, etc. — But the true
question is, whether the injury is the direct and immediate act of
the defendant, and I am of opinion that in this case it is.

The throwing the squib was an act unlawful and tending to
affright the bystanders. So far, mischief was originally intended;
not any particular mischief, but mischief indiscriminate and wanton.
Whatever mischief therefore follows, he is the author of it; —
Egrcditur Personam, as the phrase is in criminal cases. And
though criminal cases are no rule for civil ones, yet in trespass I
think there is an analogy. Every one who does an unlawful act is
considered as the doer of all that follows ; if done with a deliberate
intent, the consequences may amount to murder; if incautiously, to
manslaughter. Post. 261. So. too, in Ventr. 295. A person break-
ing a horse in Lincoln's Inn Fields hurt a man, held that trespass
lay: and 2 Lev. 172, that it need not be laid scienter. I look upon
all that was done subsequent to the original throwing as a continua-
tion of the first force and first act, which will continue till the squib
was spent by bursting. And I think that any innocent person re-
moving- the dansfer from himself to another is justifiable; the blame
lights upon the first thrower. The new direction and new force fiow
out of the first force, and are not a new trespass.

The writ in the Register 95 b. for trespass is maliciously cut-
ting down a head of water, which thereupon flowed down to and
overwhelmed another's pond, shews that the immediate act need not
be instantaneous, but that a chain of effects connected together will
be sufficient.

It has been urged that the intervention of a free agent will
make a difference : Bu ^I donot consider Willis and R va l as free ^
agents in the p resenrcaseTburacting under _a_CQ mpulsive necessity
for tlieTr' own safe ty, an d self-pres ervation. On these renstrnj^-j-
concur with BfotHjrS-liaald^-a ad Mares" that the present action i s

maintainable.
-""^ ~^v Postca to the Plaintiff.



TUTTLE V. ATLANTIC CITY RAILROAD CO:.IPAXY.

Court of Errors and Appeals of New Jersey, 1901. 66 .V. .f L.. 3J7.
\'roo.m, J. : The writ of error in this cause brings up the record
of a suit brought in the Supreme Court and tried at the Camden
Circuit Court. The defendant, the Atlantic City Railroad Company,
maintained a freight yard on the south side of Mechanic Street, in
the city of Camden, and on the 25th day of September, 1899. while
a flying drill was being made, one of the cars was derailed and
daslied across INIechanic Street, over two curbstones and two trolley
tracks, and broke through the front of the house opposite, No. 293,
belonging to a Mrs. Brcnnan. At the time of the accident, ]\Irs.
Tuttle, one of the plaintiffs, was on the sidewalk near the Brennan



2^2^ TUTTLE V. ATLANTIC CITY IL\ILROAD COMPANY

house, and looking she saw the car coming across the street at full
speed; becoming frightened at the noise, she started to run, and
when three or four doors below fell and injured her left knee. * * *

The real question in issue in the case and to be determined by
the jury was whether the plaintiff (^Irs. Tuttle), seeing the car
approaching at great speed across this street, was justified in run-
ning to escape from what she supposed was an imminent danger.

In the case of Stokes v. SaltonstaU, 13 Pet. 181, which was an
action brought to recover damages sustained by the wife of the
plaintiff by the upsetting of a stage coach in which she was a pas-
senger, the question was whether the stage was upset by the negli-
gence of the driver or by the act of the plaintiff and his wife in
rashly and improperly spVinging from it. The court held that "if
the want of proper skill or care of the driver placed the passengers
in a state of peril, and they had at that time a reasonable ground
for supposing that the stage would upset, or that the driver was
incapable of "managing his horses, the plaintiff was entitled to re-
cover; although the jury may believe, from the position in which
the stage was placed from the negligence of the driver, the attempt
of the plaintiff and his wife to escape may have increased the peril
or even caused the stage to upset, and although they also find that
the plaintiff and his wife would probably have sustained little or no
injury if they had remained in the stage."

And in the case of Jones v. Boyce, I Stark. 402, which was an
action against a coach proprietor for so negligently conducting the
coach that the plaintiff, an outside passenger, was obliged to jump
off the coach, in consequence of which his leg was broken. Lord
Ellenborough held: "To enable the plaintiff" to sustain the action
it is not necessary that he should have been thrown off the coach ;
it is sufficient if he was placed, by the misconduct of the defendant,
in such a situation as obliged him to adopt the alternative of a dan-
gerous leap, or to remain at a certain peril. On the other hand, if
the plaintiff's act resulted from a rash apprehension of danger,
which did not exist, and the injury he sustained is to be attributed
to rashness and imprudence, he is not entitled to recover."

The doctrine is concisely stated in i Shearm. & R. Negl. ^Sg:
"If one is placed, by the negligence of another, in such a position
that he is compelled to choose instantly, in the face of grave and
apparent peril, between two hazards, and he makes such a choice
as a person of ordinary prudence placed in such a position might
make, the fact that if he had chosen the other hazard he would have
escaped injury, is of no importance." * * *

It is not perceived that the question of recovery for peril, caus-
ing mere fright unaccompanied by physical suffering, is, in the
remotest sense, presented in this case. The injury sustained by the
plaintiff and for which recovery is sought was not the result of
fright, but was due to the falling down of the plaintiff and the
injury to her knee. She Avas placed in peril by the negligent act of
the defendant, and in her effort to escape from danger she fell and
was injured. Does it require any stretch of imagination to believe



TUTTLE V. ATLANTIC CITY RAILROAD COMPANY 273

that everyone in the neighborhood of this derailed car was fright-
ened, and it would be extraordinary, indeed, if they attempted to
escape and were injured that they should be without remedy. =*= * *

In the case under consideration the negligence of the defend-
ant, in permitting the derailing and escape of the car, is too plain
for argument, and it was such negligence as caused the plaintiff, in
terror, to attempt to escape the peril by running, and in so doing
she fell and was injured.

The true rule governing cases of this character may be stated
as follows : Tlui lif a de fendarit. by negligence, puts the plaintiff
under a reasona ble a pprehension ~o\ personal- f>hys-i-Gal injury, and
plaintiff, jn a reasonab le effort to' escape, sustains physical injury,
a fight o£5HiDn_jTises~ToTecover~torthe^ irijury'ancrfRe
mental . disorder naturally incidcrino its occtirrene^.-

The case below" was properly submitted to the jury, and the
judgment below should be affirmed.^



^Accord: QnigJey v. Canal Co., 142 Pa. 388 (1891), plaintiff jumped in
justifiable fright from wagon and so lost control of his horses which ran
away; Vallo v. Express Co., 147 Pa. 404 (1892), in trying to avoid a negli-
gently handled trunk plaintiff fell over a safe left on sidewalk; Tzvumlcy v.
R. R., 69 X. Y. 158 (1877), plaintiff jumped from a street car to avoid an ap-
parently imminent collision at a level crossing, the car got safely over but she
was injured by her fall; Jones v Boyce, i Starkie 493 (1817), similar facts;
iiUick V. Wilson, 58 Xeb. 584 (1899); Atlantic Coast Line v. Daniels, 8 Ga.
App. 775 (1911), somewhat curious state of facts.

So zvhere the plaintiff is injured by the acts of third persons in their effort
to avoid a peril tcronafully created by the defendant: Jackson v. Galveston
Ry. Co., 90 Tex. 372 (1897), '"I lis acts, under the circumstances, are in law
regarded as would be the movements of an inanimate object set in motion by
such negligence," Denman, J., p. 376 — plaintiff injured by crew jumping from
train to avoid imminent collision; J'anderburgh v. Trua.v, 4 Denio 464,
(N. Y., 1847). plaintiff's property injured by boy fleeing from defendant's vio-
lence: Chambers v. Carroll. 199 Pa. 371 (1901'). boy, jostled by companion
in trying to avoid negligently driven wagon, fell under its wheels ; Lowery v.
Manhattan R. R.. 99 N. Y. 158 (1885) ; Turner v. Page, 186 Mass. 600 (1904).
So the defendant is answerable for the harm received by the plaintiff in rea-
sonable efforts to save persons or property from a peril wrongfully created
by defendant— /TrA-^;-/ v. R. R., 43 N. Y. 502 (1871) : Corbin v. City of Phila-
delphia. J95 P^- 461 (1900) ; Lo7r v. .Vnc Fairviexv Co.. 10 Brit. Columbia. 330
(1904), injuries received in attempt to save life out of motives of humanity;
Mnhs v. Fire Ins. Co.. 89 X. _Y. App. Div. 389 (1903) ; Cottrill v. 7v. R.. 47 Wis.
634 (1879), plaintiff bound in duty to take risk to save life — policeman stoo-
ping runaway and railroad engineer remaining at the throttle.

As to injuries received in effort to save property; property that of plaintiff.
Page v. Bucksport. 64 Maine 51 (1874") ; Cooper v. Richland County. ■;6 S. C.
202 (1006) contra. Croxcley v. West End. 149 Ala. 3.49 (1907), plaintiffs in-
jured trying to extricate their horses from hole in highways; Siler v. R. R.,
229 111. 390 (1907"), plaintiff injured while trying to extinguish fire on his
premises, ace. Glanz v. R. R.. T19 Iowa 611 (1903) ; Connell v. Tozvn of Pres-
cotf. 22 Can.. S. C. 147 (1893") : Henry v. R. R.. 67 Fed. 426 (iSos") ; contra,
.^eale v. R. R.. 65 Tex. 274 (t886\ and Pike v. 7?. /?.. 39 Fed. 255 i:i889V In-
juries received in attempt to save property of third persons. Liming v. R. R.,
8r Iowa 246 (1890) ; contra. Cook v. Johnson, 58 Mich. 437 (1886), and see
City of Lincoln, L. R. 15 P. D. 15 (t88o), barque ran ashore in attempt to
reach port without compasses, etc., destroyed in collision.



274.



SNEESBY V. LANCASHIRE & YORKSHIRE RY. CO.



SNEESBY V. LANCASHIRE AND YORKSHIRE RAILWAY

COMPANY.

Court of Queen's Bench, 1874. L. R. 9 Q. B., 263.

On the admitted facts [which sufficiently appear in the opinion
of Blackburn, J.], the learned judge directed a nonsuit, with leave to
move to enter a verdict for the plaintiff for 153/. i^s.; the court to
draw inferences of fact.

A rule was obtained accordingly, on the grounds that the de-
fendants were guilty of negligence, and also of a breach of duty
in respect of the fences; and were liable for the death and injury
to the cattle.

Price, Q.C., and Beasley, shewed cause. First, the death of the
cattle was attributable to the defect of the fences. But the de-
fendants were not bound to keep up the fences as against the plam-
tiff's cattle.

Secondly, the defect of the fences was the proximate cause of
the damage, and the damage was too remote from the defendants'
negligence. There was a considerable lapse of time between the
time when the cattle were frightened and when they were run over.

[Blackburn, J. : There was no evidence as to when the train
passed which did the mischief. However, on the facts as left for
us, we must take it that there was no negligence on the part of the
drovers in looking after and endeavoring to recover the cattle.
This is the case of a tort, but it is somewhat analogous to the case of
insurance ; and where a ship is taken out of the control of the crew
by a peril insured against, and is afterwards destroyed by another
cause, still there is a total loss for which the underwriter is liable.
The loss here is the same as if the cattle had fallen into an un-
fenced quarry.]^

Blackburn, J. : I am of opinion that the rule must be made
absolute. The facts seem to be that, by what is admitted to have
been negligence on the part of the servants of the company, the
cattle of the plaintiff, as they were crossing the railway on the level,
were frightened and scattered, so that for a time the plaintiff's
drovers lost control of all of them; they recovered the chief part
of the cattle, but some were found killed on another railway. It
happens that this was also the defendants' railway; and it appears
that the cattle got on to the railway through a defect in the fence of
a garden or orchard belonging to the defendants; but from the
nature of the accident it seems to me that we may treat the case as
if it had been the railway of some other company, or as if the cattle
had fallen down an unguarded quarry. The question is, are the
defendants, whose negligence drove the cattle out of the custody
of the plaintiff, liable for their death, or is the damage too remote?
No doubt the rule of our law is that the immediate cause, the causa
proxima, and not the remote cause, is to be looked at : for, as Lord
Bacon says: "It were infinite for the law to judge the causes of

^The argument of Field, Q. C in support of the rule, is omitted.



SNEESBY V. LANCASHIRE & YORKSHIRE RY. CO. 275

causes and their impulsions one of another; therefore it contenteth
itself with the immediate cause, and judgeth of acts by that, without
looking to any further degree." Bac. Max. Reg. i. The rule is some-
times difficulty to apply, but in a case like the present this much is
clear, that so long as the want of control over the cattle remains with-
out any fault of the owner, the causa proxima is that which caused
the escape, for the consequences of which he who caused it is respon-
sible. Suppose, for instance, in former times a reclaimed falcon
were frightened and escaped, the natural consequence would be
that it would be lost altogether, and the person who negligently
frightened it would be liable. The natural and proximate conse-
quence was that it would not be got back at all. So, if you have
lost control of cattle and cannot get them back under your control
till they have run into danger and are killed, the death is a natural
consequence of the negligence which caused you to lose control of
them. It is the most natural consequence of cattle being fright-
ened that they should go galloping about and get into a dangerous
position, and, being in the neighborhood of railways, should get on
the line and be run over by a passing train, whether that of the
defendants or not is immaterial. When once it is established that
the cattle were driven out of the control of the plaintiff by the de-
fendants' negligence and that the control could not be recovered till
they were killed, which was the natural consequences of their being
uncontrolled, the liability of the defendants is beyond dispute.^

Rule absolute.^



'Opinions of Quain and Archibald, J. J., concurring, are omitted.

'Accord: Wilder v. Stanley, 65 Vt. 145 (1893), colts negligently allowed
to escape from defendant's pasture some days later ran into a barbed wire
fence and were injured. It was uncertain whether or not they had not been
driven into the fence by one J., who under the evidence might or might not
have been plaintiff's servant, but who was trying to drive them back. See
contra, IVcst Mahanoy Ton'nship v. JVatson, 112 Pa. 574 (1886) ; 116 Pa. 344
(1887), horses frightened by defect in highway broke loose and some hours
later, after first fright had subsided but while still out of control were run
over by railroad train at a point some distance away, and Gilman v. Noycs,
57 N. H. 627 ( 1876), where it was held that when sheep were negligently per-
mitted to escape and were destroyed by bears it was for the jur>' to say
whether this particular risk should have been foreseen, and see ace. R. R. v.
Parry, 67 Kans. 515 (1903), plaintiff while helpless and dazed by illness or
drunkenness being ejected from defendant's train wandered on the tracks of
another railroad five miles away and was run over. See also, Southern R. R.
V. IVchb, 116 Ga. 152 (1902), a passenger was negligently jolted out of de-
fendant's train and fell unconscious on the track where he was run over by a
train of another companv which had right to use same track, bui see contra.
Pass. R. R. v. Trick, 117'Pa. 390 (1887). passenger jolted from street car onto
street, run over by runaway horse.

One frightening a horse is liable for all injuries resulting from its eccen-
tric acts while out of control whether to its owner or driver or his property;
Harris v. Mohhs. L. R. 3 Ex. Div. 268 (1878) : Quinlan v. Fhila.. 205 Pa. 309
(1903) : Cutter v. Dcs Moines, 113 N. W. 1081 (Iowa, 1907), or to the pub-
lic McDonald v. Snclling. 14 .\llcn. 290 (^'Iass.. 1867^ : Turner v. Page. 186
Mass. 600 (1904^ ; Collins v. West Jersey Exp. Co., 72 N. J. L. 231 (1905);
Stevens v. Dudley. 56 Vt. 158 (1884).



276 DANIELS V. N. Y., N. H. & H. R. R. CO.



DANIELS V. NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, 1903. 183 Massachusetts, 393.

Knowlton, C. ]}

The important question in the second case relates to the man-
ner of Daniel's death and to the law applicable to a death caused as
his was. He received a blow on the head and other injuries at the
time of the accident, which occurred on August 12, 1899, and he died
-._on the third day of the next October.'^The evidence tended to show
that his mind was clear for several weeks after the accident, but
after that he showed symptoms of insomnia and restlessness and
began to suffer from severe attacks of headache, was melancholy
and at times delirious. The autopsy after his death showed circum-
scribed meningitis which produced mental aberration. On October
3d he was left alone on his bed in a room from which the door
opened into the dining room. This door was left open, and, after a
time, it was found closed and locked from the bedroom on the
inside. His wife entered the room through a window, and he was
discovered lying on his bed, with a napkin which had been left on a
tray, used for bringing his food, twisted tightly around his neck
and held tightly in his hands so as to produce strangulation. He
was not then dead, but died soon afterwards. Experts testified that
he was probably insane when he took his life.

The question is whether his life was lost by the collision within
the meaning of the statute. The jury were well warranted in find-
ing that his mental condition was caused by the collision. If his
mental condition had remained normal, probably he would not have
died in this way. We are thus brought to the consideration of the
question which is often very difficult to decide, wheth er an essentia l
conditionprecedent, is the actiye^effici ent, pro xjma ^ caus e of a
"subsequent eventT or i s onTy "a prog uceF^f co nditimis which open
_JtEi^^doarT:o another cau'se^whicli^4ir££dy_^ndri£iiy^IylE?0'iuces the