Francis H. (Francis Hermann) Bohlen.

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defendant) had last night some flocking cord cut into six yard lengths,
but he knew who did it ; for it was William Vicars; meaning that the
plaintiff had unlawfully cut the said cord. And so it stated other
like discourse with other third persons, imputing to the plaintiff' that
he had maliciously cut the defendant's cordage in his rope-yard. By
reason whereof the said /. 0. believing the plaintiff to have been
guilty of unlawfully cutting the said flocking cord, &c., discharged
him from his service and employment, and has always since refused
to employ him ; and also one R. P., to wdiom the plaintiff' applied to
be employed after his discharge from /. 0., on account of the speak-
ing and publishing the said slanderous words, and on no other ac-
count whatsoever, refused to receive the plaintiff into his service.
And by reason of the premises the plaintiff has been and is still out
of employ and damnified, &c.

It appeared at the trial before Lawrence J. at Stafford that the
plaintiff had been retained by /. O. as a journeyman for a year at
certain wages, and that before the expiration of the year his master
had discharged him in consequence of the w^ords spoken by the de-
fendant. *That the plaintiff afterwards applied to R. P. for employ-
ment who refused to employ him, in consequence of the words, and
because his former master had discharged him for the offence im-
puted to him. The plaintiff was thereupon non-suited ; it being ad-
mitted that the words in themselves were not actionable without spe-
cial damage ; and the learned Judge being of opinion that the plaintiff
having been retained by his master under a contract for a certain
time then unexpired, it was not competent for the master to dis-
charge him on account of the words spoken ; but it w^as a mere
wrongful act of the master, for w^hich he was answerable in damages
to the plaintiff; that the supposed special damage was the loss of
those advantages wdiich the plaintiff was entitled to under his con-
tract wnth his master; which he could not in law be considered as
having lost, as he still had a right to claim them of his master, who,
without a sufficient cause, had refused to continue the plaintiff in his
service. 2dly, With respect to the subsequent refusal of R. P. to
employ the plaintiff, that it did not appear to be merely on account
of the words spoken ; but rather on account of his former master
having discharged him in consequence of the accusation ; without
which he might not have regarded the words.

Jervis now moved to set aside the nonsuit, and urged that it was
always deemed sufficient proof of special damage in these cases to
shew^ that the injury arose in fact from the slander of the defendant,
and it w^as not less a consequence of it because the act so induced
was wrongful on the part of the master. He said, that he could find
no case where such a distinction was laid down, and that the practice
of Nisi Pruis was understood to be otherwise. 2dly. That the re-
fusal of 7?. P. to employ the plaintiff was clear of that objection ; and
that such refusal had preceded upon the alleged cause of discharge
by the first master, and not upon the bare act itself of discharge.

Lord Ellenborough, C. J. said, that the special damage must
be the legal and natural consequence of the words spoken, other-


wise it did not sustain the declaration ; and here it was an illegal con-
sequence; a mere wrongful act of the master; for which the defend-
ant was no more answerable, than if, in conscriuence of the words,
other persons had afterwards assembled and seized the plaintiff, and
thrown him into a horsepond by way of punishment for his supposed
transgression. And his Lordship asked whether any case could be
mentioned of an action of this sort sustained by proof only of an in-
jury sustained by the tortious act of a third person. ^

Upon the second ground, non liquet that the refusal by R. P.
to employ the plaintiff was in consequence of the words spoken, as
it is alleged to be ; there was at least a concurrent cause, the act of
his former master in refusing to continue him in his employ; which
was more likely to weigh with R. P. than the mere words themselves
of the defendant. -

The other Judges concurring,

Rule refused.

^Accord: Bentley v. Reynolds, I McMulIan 16 (S. C, 1840), semble;
Beach v. Ranncy, 2 Hill 309 (.N. Y., 1842) ; Tcnvilltger v. Wands, 17 N. Y.
58 (1858), sevible ; the two latter cases injuries resulting from repetition
of slander. But see Blake Odger's, Libel and Slander, 4th Ed., p. 385 et seq.
"It is now clear law that the defendant is liable for any act which it was
his obvious intention, or the natural result of his words, to induce another
to commit," and Lord Wenslcydale, Lynch v. Knight, ante, p. 38; see also
Wallace v. Rodgcrs, 156 Pa. 395 (1893).

In torts, other than slander, Lord Ellenborough's statement is followed
or quoted with approval, Crain v. Pctrie, 6 Hill, 522 (N. Y., 1844) ; Hughes
V. McDonough, 43 X. J. L. 459 (1881) ; Gate v. Gate, 50 N. H. 144 (1870), and
Fazvcett v. R. R., 24 W. Va. 759 (1884) ; see also Cooley, Law of Torts, p. 76
and Gunier v. McKee, 99 Me. 364, p. 368 (1904), and in Washington v.
B. & O. R. R., 17 W. Va. 190 (1880), the doctrine of the last chance in con-
tributory negligence is worked out by its application, see on this point 21
Harv. L. R.. pp. 236 to 242.

Gomparc Anon., Huntingdon Assizes (1367), 42 Ed. iii. Lib. Assis. pi. 19,
Appellor for robbery not liable to acquitted appellee for imprisonment due to
delay of justices in taking the inquest; but see Newman v. Zachary, Aleyn 3
(1647), one falsely representing a sheep to be an estray liable for its seizure
as such.

See Contra: R. v. Moore, 3 B. & Ad. 184 (1832), indictment for nuisance,
"in attracting disorderly crowd by maintaining grounds for pigeon shooting.
If the experience of mankind must lead any one to expect the result, the
defendant will l)c answerable for it," Littlcda'le. J., p. 188; Barber v. Penley,
L. R., 1893, 2 Ch. D. 447, crowd collected in front of theatre blocking high-
way; and Collins v. Middle Level Commissioners and Lane v. Atlantic, post,
pp. no, 112 and notes.

'An originator of a slander or libel is not liable for the results of its
unauthorized repetition, Shocpflin v. Coffey, 162 N. Y. 12 (1900), slander-
ous statements made to one who is known to be a newspaper reporter, noth-
ing being said on either side as to their publication; but see Whitney v.
Moignard. L. R. 24 Q. B. D. 630 (1890) ; aliter, if repeated by one legally or
morallv bound to repeat it. Derry v. Handley, 16 L. Times 263 (1867). In
Tericiili^er v. Wands. 17 N. Y. 58 (1858). this is said to be due to the fact
that in the one case the repetition is illegal and wrongful, and in the other
innocent; see. however. Blake Odger's, Libel and Slander, 4th Ed., pp. 388-
389. "the repetition by a free agent is neither a direct nor a natural result
of a slander while repetition by one bound to repeat it is natural."


Court of Conunon Pleas, 1869. L. R. 4 C. P. 279.

This was an action brought by the plaintiff, a farmer and oc-
cupier of lands situate in a district called the Marshland Fen, in the
County of Norfolk, against the defendants, being the Commissioners
for carrying into execution an act of Parliament of the 7 & 8 Diet.
c. cvi, intituled "An act for improving the drainage and navigation
of the middle level of the fens," to recover compensation for damage
sustained by the plaintiff, by reason of lands in his occupation being-
inundated and injured and his crops destroyed through the break-
ing of a sluice and the bank of a certain cut made by and belonging
to the Commissioners, in consequence of the negligence of the Com-
missioners in making and maintaining the sluice and cut. The ac-
tion was referred to three arbitrators.

By the drainage act, the Commissioners were to construct a cut,
with proper walls, gates, and sluices, to keep out the waters of a tidal
river, and also a culvert under the cut to carry oft' the drainage from
the lands on the east to the west of the cut, and to keep the same at
all times open. In consequence of the negligent construction of the
gates and sluices, the waters of the river flowed into the cut, and
bursting its western bank, flooded the adjoining lands.

The plaintiff and other owners of lands on the east side of the
cut closed the end of the culvert, which prevented the waters over-
flowing their lands to any considerable extent; but the occupiers of
the lands on the west side, believing that the stoppage of the culvert
would be injurious to their lands, reopened it, and so let the waters
through on to the plaintiff's land to a much greater extent. ^

The total damage which the plaintiff sustained from the flood
waters coming on his, lands and destroying his crops amounted to
1180/. ; but, if he should not be entitled to recover such damages as
were consequent on the opposition made by the occupiers of the land
on the west side of the defendants' cut to the closing of the culvert,
and on the removal of the obstructions placed by the plaintiff and
the other occupiers on the east side to the passage of the flood waters
through the culvert, the damages sustained and recoverable by him
would then be 118/. only.

The question for the opinion of the Court was, whether, under
the circumstances above mentioned, the plaintiff was entitled to re-
cover in the said action against the defendants the larger or the
smaller of the said two sums.

Keane, Q. C. (Mercweather with him), for the plaintiff. 2

Mellish, Q. C. {O'Mallcy, Q. C. and Mctcalf, with him), for
the defendants. ^ — If by adopting reasonable precautions the plaintiff
might have avoided the injury, he was bound to adopt them; and, if

^ The facts given are as stated in the head note.

' Argument omitted.

'Only part of the argument is given.


these failed through the wrongful acts of third parties, the damage
resulting therefrom cannot be said to be the proximate consequence
of the defendants' negligence.

[Brett, J. — Could the defendants have complained if it had
never suggested itself to anybody that the damage to the plaintiff's
land might have been prevented or materially diminished by the clos-
ing of the culvert?]

That might have raised a question for a jury, the answer to
which would depend upon a variety of circumstances,

[liRETT, J. — Assuming that those who removed the dam from
the mouth of the culvert were wrongdoers, how can the liability be
apportioned between them and the defendants, but for whose negli-
gence no damage would have occurred?]

No wrong was done to the plaintiff until the flood waters
reached his land. But for the wrongful act of strangers, the plaintiff
would have sustained little or no injury.

Kcanc, Q. C, in reply.— The case of Scott v. Shepherd, 2 W. Bl.
892, I Sm. L. C. 343, 4th ed., is an answer to the argument on the
part of the defendants. If the squib had not been originally thrown
in that case, or if the defendants in this case had kept the tidal waters
of the Ouze penned back, no mischief could have happened.

Montague Smith, J. — I am of opinion that the plaintiff' is en-
titled to judgment for the larger amount of damages mentioned in
the question submitted to us. The misfortune was proximately
caused by the defendants' negligence. It appears that there was a
culvert under the cut for the purpose of draining the lands of the
plaintiff and others on the east side ; and that, when the waters broke
through the bank of the cut, the owners of the land on the west side,
imagining that if the neignbouring lands on the east were also over-
flowed the injury to themselves would be diminished, removed the
obstruction which the plaintiff and others had placed at the mouth of
the culvert to prevent their lands being flooded. The act of Parlia-
ment seems to require the culvert to be kept open at all times. It
may be that no person had a right to close it. But. at all events, the
defendants cannot excuse themselves from the natural consequences
of their negligence, by reason of the act, whether rightful or wrong-
ful, of those who removed the obstruction placed in the culvert under
the circumstances found in this case. J. — The culvert was existing by virtue of the act of Par-
liament, and was to be kept open at all times. No person, therefore,
could have a legal right to close it ; and consequently the lando^^Tlers
on the west side of the cut could no more be called wrongdoers for
removing the obstruction, than the plaintiff for placing it there. But,
assuming that the former were wrongdoers, tlie primary and
substantial cause of the injury was the negligence of the defendants :
and it is not competent to them to say that they are absolved from
the consequence of their wrongful act by what the plaintiff or some
one else did. The plaintiff' had impeded the passage of the water
into the lower end of the culvert ; and the owners of land on that side
removed the impediment. I cannot see how the defendants can


excuse themselves by urging that the plaintiff was prevented by other
wrongdoers from preventing a part of the injury. That would be
apportioning the consequences of their negligence between them-
selves and other wrongdoers. I think the plaintiff is entitled to re-
cover the larger sum.

Judgment for the plaintiff. *


Supreme Judicial Court of Massachusetts, 1872. iii Massachusetts, 136.

Tort. The declaration alleged, in substance, that the defendant
had wrongfully left in a public highway in Boston a truck so care-
lessly loaded with iron that the iron would easily fall oft'; and that
the plaintiff' being lawfully on the highway and in the exercise of due

* Accord: Intervening negligent conduct of strangers themselves re-
moving conditions created by defendant's wrong which interfere with
the enjoyment of their property or the exercise of their legal rights. Clark
V. Chambers, L. R. 3, Q- B. D. 2^7 (1878), defendants placed a cheveaux de
frise across the cartway of a private road, it was removed by a third per-
son in order to enjoy his right to use the cartway and was, by him placed
on the sidewalk where the plaintiff ran into it and was injured; Fishbiirn v.
Raihvay Co., 127 la. 483 (1905), the plaintiff, a young child, in order to get
at some vegetables on his father's premises, lifted up a snow fence, which,
having been negligently constructed thereon by the defendants, had been
blown over upon the bed, and replaced it as nearly as he could; whereupon
it was again blown down, injuring the plaintiff; see also Bloom v. Ins. Co.,
97 Ind. 478 (1884), the death of insured from a beating, administered by a
man in defense of his wife attacked by the insured, was held to be the re-
sult of his wrongful act in attacking the woman. Elliott, C. J., p. 485.

So where strangers act negligently in their efforts to make safe a con-
dition, created by defendant, dangerous to the public or some class thereof;
Henry v. Dennis, 93 Ind. 452 (1883), a passerby, seeing cows drinking fish
brine from barrels left open by defendant in the street, emptied it into the
gutter, where the plaintiff's cows drank it and were injured; Williams v.
Koehler Co., 41 N. Y. App. Div. 426 (1899), defendant's horse, left untied,
having wandered away, a passerby stops and in driving it back injures
plaintiff, but see, Mann v. Ward, 8 times L. R. 699 (1892), while thedefend-
ant is drimk and asleep in his cab, another drunken man drives it negli-
gently; Cf. also Harton v. Forrest City Tel. Co., 146 N. C. 429 (1907), de-
fendant's telegraph pole being negligently maintained, falls; a passerby sets
it up again but does not make it secure so that it falls again upon the

So where strangers act negligently in assisting plaintiff injured by de-
fendant's 'wrong: Pullman Co. v. Bluhm, 109 111. 20 (1884); Rice v. Dcs
Moines, 40 la. 644 (1875); ^^offcl v. R. R., 75 Mo. 654 (1882); Stover v.
Bluehill. 51 'Me. 439 (1863); Eastman v. Sanborn, 3 Allen, 594 (Mass.,
1861) ; Tuttle v. Farmington, 58 N. H. 13 (1876) ; Sauter v. R. R., 66 N. Y.
50 (1876); Wallace v. P. R. R., 222 Pa. 556 (1909), plaintiff's injuries ag-
gravated by the negligence of physicians and surgeons; Contra, Schmidt v.
Mitchell, 84 111. 197 (1876), a surgeon not guilty of negligence, but of, at
most, an unavoidable error of judgment; Cf. also Parsons v. State, 21 Ala.
301 ("1852), and Teis v. Smuggler Mining Co., 158 Fed. 26o_ (C. C. A. 8th
Ed.. Circ. 1907). miner, imperilled by employer's misconduct, injured by neg-
ligence of rescuers.


care was injured by the said iron which was thrown and fell upon
him in consequence of the defendant's negligence.

On the trial in the Superior Court before Devens, ]., the plaintiff
introduced evidence showing that the defendant's truck was left
standing in front of their works in Marion Street, that the iron was
not fastened but would easily roll off the truck, that the plaintiff,
Fergus Lane, then seven years old, was walking with another boy
in the street opposite the truck when Horace Lane, a boy of twelve
called them to come over and see him move the truck, that the plain-
tiff went over and stood near the truck to see the wheels move, that
Horace Lane took hold of the tongue of the truck and moved it and
that the iron rolled off and injured the plaintiff's leg and that he him-
self had not touched the truck or the iron. The Court refused to give
the following instruction as requested by defendant.

"3, \\'hile it is true that negligence alone on the part of Horace
Lane, which contributed to the injury combining with the defend-
ants' negligence, would not prevent a recovery, unless the plaintiff's
negligence also concurred as one of the contributory causes also ; yet,
if the fault of Horace Lane was not negligence, but a voluntary
meddling with the truck or iron, for an unlawful purpose, and wholly
as a sheer trespass, and this culpable conduct was the direct cause of
the injury which would not have happened otherwise, the plaintiff
cannot recover."

And inter alia gave the following ruling: "If the sole or the
direct cause of the accident was the act of Horace Lane, the de-
fendants are not responsible. If he was the culpable cause of the ac-
cident, that is to say, if the accident resulted from the fault of Hor-
ace Lane, they are not responsible. But if Horace Lane merely con-
tributed to the accident, and if the accident resulted from the joint
negligence of Horace Lane in his conduct in regard to moving the
truck and the negligence of the defendants in leaving it there, where
it was thus exposed, or leaving it so insecurely fastened that this par-
ticular danger might be reasonably apprehended therefrom, then the
intermediate act of Horace Lane will not prevent the plaintiff from
recovering, provided he himself was in the exercise of due and rea-
sonable care. If the plaintiff' himself participated in the act of Hor-
ace Lane no further than to go there and be a witness to this trans-
action which Horace Lane proposed to perform, crossing over the
street by his invitation, and witnessing him move this trujk, that
would not make him such a participator in the wrongful act of Hor-
ace Lane as to prevent his recovery, provided he himself was in the
exercise of reasonable care."

The jury returned a verdict for the plaintiff for $6000 and the
defendants alleged exceptions.

Colt, f. ^ In actions of this description, the defendant is liable
for the natural and probabt?"C'onsequences of his negligent act or
omission. -The- -injtrrymTt^t he the direct result of the misconduct
charged; but it will' not be considered too remote if, according to

^The facts are restated and only so much of the opinion is printed as
deals with legal cause.


the usual experience of mankind, the result ought to have been ap-
prehended. ',

The act of a third person, intervening and contributing a condi- \
tion necessary to the injurious effect of the original negligence, will
not excuse the first wrongdoer, if such act ought to have been fore-:
seen. The original negligence still remains a culpable and direct
cause of the injury. The test is to be found in the probable injurious
consequences which were to be anticipated, not in the number of sub-
sequent events and agencies which might arise.

Whether in any given case the act charged was negligent, and
whether the injury suffered was, within the relation of cause and
effect, legally attributable to it, are questions for the jury. They
present oftentimes difficult questions of fact, requiring practical
knowledge and experience for their settlement, and where there is
evidence to justify the verdict, it cannot be set aside as matter of law.
The only question for the Court is, whether the instructions given
upon these points stated the true tests of liability.

3. The last instruction asked was rightly refused. Under the
law as laid down by the court the jury must have found the defend-
ants guilty of negligence in doing that from which injury might rea-
sonably have been expected, and from which injury resulted; that
the plaintiff was in the exercise of due care ; that Horace Lane's act
was not the sole, direct or culpable cause of the injury; that he did
not purposely roll the iron upon the plaintiff; and that the plaintiff
was not a joint actor with him in the transaction, but only a specta-
tor. This supports the verdict. It is immaterial whether the act of
Horace Lane was mere negligence or a voluntary intermeddling. It
was an act which the jury have found the defendants ought to have
apprehended and provided against. McDonald v. Snelling, 14 Allen,
290, 295. Pozvcll V. Dcveney, 3 Cush. 300. Barnes v. Chapin, 4
Allen, 444. Tiitein v. Hurley, 98 Mass. 211. Dixon v. Bell, 5 M. &
S. 198. Mangan v. Atherton, L. R. i Ex. 239. Illidge v. Goodwin,
5 C. & P. 190 Burrows v. March Gas Co. L. R. 5 Ex. 67, 71.
Hughes V. Maciie, 2 H. & C. 744.

Exceptions overrided. 2

' The habitually thoughtless, though legally culpable, inadvertences of
careless people, children or adults, (see Allen, J., 155 Mass., p. 586) ; that
"occasional negligence which is one of the ordinary incidents of human
life" (Irish R., 1897, 2 Q. B., p. 312), and as such is to be expected. Illidge
V. Goodwin, 5 C. & P. 190 (1831) ; McCahill v. Kip, 2 E. D. Sm. 413 (N. Y.,
1854), horses left unguarded and unsecured in street; McCaulcy v. Norcross,
155 Mass. 584; The J. B. Thomas, 81 Fed. 578 (1897), heavy objects likely to
fall if disturbed; Pastene v. Adams, 49 Cal. 87 (1874), lumber carelessly piled
in street; Village of Carterville v. Cook, 129 111. 152 (1889), wayfarers forced
into contact with defects in highways by negligence of fellow-travellers;
see ace. Ashborn v. Waterbury, 70 Conn. 551 (1898, scmblc). In many cases
the wrongful act of the fellow-traveller is considered only as affording an
excuse for the plaintifif not observing or avoiding the defect and so bearing
upon his contributory negligence or assumption of the risk thereof, the prima
facie liability of the municipality being apparently admitted, see Barton v.
Springfield, no Mass. 131 (1872) ; Burrows v. Marsh Gas Co., L. R., 5 Ex,
67 (1870) ; Koelch v. Phila., 152 Pa. 355 (1893) ; Koplan v. Boston Gas Co.,


177 Mass. 15 (1900;, gas allowed to escape and exposed to ignition; Patter-
sun V. Mayvr uf Blatkburn, y Times, L. K. 39 U^3>'. gas pipes, merely
capped alter removal of meter and left exposed in cellar, uibiead of being
cut off outside of the premises, broken by careless workmen, blrangers to
defendant; but see Stunc v. A'. A'., 171 Mass. 536 (1898;, railroad, storing
inflammables in freight house in violation of a statute, held not liable for the
consequences of its explosion in a fire started by a shipper carelessly throw-
ing away a lighted match; Sheridan v. Brooldyn K. A., 36 X. Y. 39 i^itibj),
passenger injured on crowded platform by fellow passenger, violently and
abruptly forcing his way out; Cf. Snyder v. A. A., 36 Col. 288 (1906) Col.
Mortijagc Co. v. Kees, 21 Col. 435 (.li^yS) ; Toiiscy v. Roberts, 114 N. Y. 312
(1889J, elevator doors, left unfastened or ajar, opened by strangers, contra.
Cole V. German Saving Soc., 124 Fed. 113 (C. C. A., 8th Circ, 1903). See also