Francis H. (Francis Hermann) Bohlen.

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taken due care to extinguish it while on their land. "The failure to extin-
guish it (the fire) was not. in any just sense, an efficient cause of its spread-
ing; it was merely the absence of prevention. Although that failure might



298 GALVIN t'. THE MAYOR, ETC., OF NEW YORK

be culpable, yet it neither added to the original force nor gave it new direc-
tion and hence, in tracing back the line of causation, it would not be noticed
as a potent agency". Dixon, J., p. 252; Aih'mson v. Goodrich Transportation
Co.. 60 Wis. IT4 (1884), P- 167, negligent failure of fire department to ex-
tinguish fire; Hartley v. Mayor of Rochdale. L. R., T008. 2 K. B. 594, a water
comnanv so laying its pipe as to cause subsidence of highway is not relieved
bv the omission of road authorities to repair fin England such authorities
are under a nositive duty to maintain the highways in safe condition for
breach of which they are indictable, though no private action lies against
them save for misfeasance), Moon. v. Northern Pac. R. Co., 46 Minn. 106
(1891) ; and Teal v. American Mining Co., 84 Alinn. 320 (1901), a failure of
a railroad to inspect a defection in cars turned over to it for carrialge by the
defendant, (a connecting carrier), (or if it knows of its bad condition, its
failure to instruct the crew how to operate it carefully. Hill v. Republic Iron
&■ Steel Co., 112 Minn. 244 (1910)), "was not an independent cause inter-
rupting the continuous sequence between the (defendants') negligence and
the injury of the plaintiff." It was "the failure to interrupt the consequences
likelv *o and which did flow from the defendants' negligent conduct." Contra,
Doggett v. Richmond & D. R. Co., 78 N. Car. 305 (1878). failure of third
persons, apparently friendly volunteers, owing no duty to plaintiff, to check
spread of fire; held to exonerate defendant negligently starting it; Riser v.
Suppe, 133 Mo. App. 19 (1908), defendant supplied to a contractor doing
work for him on his premises a defective cable to be used by the latter's
servants in doing the work, it was held that "defendant's negligence was but
a remote cause, since it would have been rendered innocuous had the plain-
tiff's master performed his subsequent duty of inspection," Johnson, J., p.
1009; Fowler v'. Briggs, 116 Mich. 425 (1898) ; Savannah F. & W. R. Co. v.
Booth, 98 Ga. 20 (1895), similar facts; sse also, Ladd v. New York &c. R.,
193 Mass. 359 (1907)._

There is a very distinct tendency in some jurisdictions (to which the de-
cisions in Riser v. Suppe and Fowler v. Briggs, may well be due), to hold
that no duty will be imposed on a defendant toward a plaintiff already pro-
tected from the same source of danger by a duty admittedly due him by an-
other more nearly associated with him, Glynn V Central R. Co., 175 ^lass.
510 (1900), railroad owes to trainmen of connecting road no duty to inspect
its cars before turning them over; accord: Missouri K. & T. R. Co. v.
Merrill 65 Kans. 436 (1902) ; contra: Moon v. Northern Pac. R. Co., 46
Minn. 106 (1891); Pennsylvania R. R. Co. v. Snyder, 55 Ohio 342 (1896).
See, as to liability of a landlord leasing premises externally dangerous unless
tenant takes positive steps to make them safe, Cliiford v. Atlantic Cotton
Mills, 146 ]\Iass. 47 (1888) ; Coman v. Alles, 198 ^lass. 99 (1908) ; but see
Brown v. White, 202 Pa. 297 (1902) contra, semble; and see, on whole sub-
ject, Beven. Negligence in Law, 2nd Ed., p. 61 et seq., and the editor's Af-
firmative Obligations in the Law of Tort, 53 A. L. Reg. (44 N. S.), p. 2Z7
et seq.



Part 2.

Duty to Take Positive Action for the Protection or

Benefit of Others.



CHAPTER I.

Moral Obligation and Legal Duty.



BUCH V. AMORY MANUFACTURING CO.
Supreme Court of New Hampshire, 1897. 69 New Hampshire, 257.

Carpenter, C. J. On the evidence, the jury could not properly
find that the plaintiff was upon the premises of the defendants with
their consent or permission. Although there was evidence tending
to show that other back-boys had taken their brothers into the room
for the purpose of instructing them in the business, there was no
sufficient evidence that the fact that they did so was known to the
defendants, and there was evidence that on the first occasion brought
to their knowledge they objected. Upon this state of the evidence,
a license by the defendants — whether material or immaterial — for
the plaintiff's presence in the room could not legitimately be inferred.
The plaintiff was a trespasser.

The defendants' machinery was in perfect order and properly
managed. They were conducting their lawful business in a lawful
way and in the usual and ordinary manner. During the plaintiff's
presence they made no change in the operation of their works or in
their method of doing business. No immediate or active inter-
.vention on their part caused the injury. It resulted from the joint
operation of the plaintiff's conduct and the ordinary and usual con-
dition of the premises. Under these circumstances, an adult in full
possession of his faculties, or an infant capable of exercising the
measure of care necessary to protect himself from the dangers of
the situation, whether he was on the premises by permission or as a
trespasser, could not recover. * * *

Assuming, then, that the plaintiff was incapable either of appre-
ciating the danger or of exercising the care necessary to avoid it, is
he, upon the facts stated, entitled to recover? He was a trespasser
in a place dangerous to children of his age. In the conduct of their
business and management of their machiner}' the defendants were
without fault. The only negligence charged upon or attributed to
them is that, inasmuch as they could not make the plaintiff under-
stand a command to leave the premises and ought to have known
that they could not, they did not forcibly eject him.

299



30O BUCK t'. AMORY M AX UFACTIRING CO.

Actionable negligence is the neglect of a legal duty. The de-
fendants are not liable unless they owed to the plaintiff a legal duty
which they neglected to perform. With purely moral obligations
the law does not deal. For example, the priest and Levite who
passed by on the other side w'ere not, it is supposed, liable at law
for the continued suft'ering of the man who fell among thieves, which
they might and morally ought to have prevented or relieved. Sup-
pose A, standing close by a railroad, sees a two-year old babe on the
track and a car approaching. He can easily rescue the child with
entire safety to himself, and the instincts of humanity require him to
do so. If he does not, he may, perhaps, justly be styled a ruthless
savage and a moral monster ; but he is not liable in damages for the
child's injury, or indictable under the statute for its death. P. S.,
c. 278, .r. 8.^ * * *

"No action will lie against a spiteful man, wdio, seeing another
running into danger, merely omits to warn him. To bring the case
within the category of actionable negligence some wrongful act must
be shown, or a breach of some positive duty; otherwise, a man who
allows strangers to roam over his property would be held answerable
for not protecting them against any danger they might encounter
whilst using the license." Gautret v. Egerton, L. R, 2 C. P. 371, 375.

What duties do the owners owe to a trespasser upon their prem-
ises? They may eject him, using such force and such only as is
necessary for the purpose. They are bound to abstain from any
other or further intentional or negligent acts of personal violence —
bound to inflict upon him by means of their ow^n active intervention
no injury which by due care they can avoid. They are not bound
to warn him against hidden or secret dangers arising from the con-
dition of the premises ( Redigan v. Railroad, 155 Alass. 44, 47, 48),
or to protect him against any injury that may arise from his own
acts or those of other persons. In short, if they do nothing, let him
entirely alone, in no manner interfere with him, he can have no
cause of action against them for any injury that he may receive.
On the contrary, he is liable to them for any damage that he by
his unlaw- ful meddling may cause them or their property. What
greater or other legal obligation was cast on these defendants by the
circumstance that the plaintiff was (as is assumed) an irresponsible
infant?

If landowners are not bound to warn an adult trespasser of



^Accord: Field, J., U. S. v. Knozvles, 4 Sawyer, 517 (U. S. Dist. Ct.,
1864), "It is undoubtedly the moral duty of every person to extend to others
assistance when in danger." "And if such efforts should be omitted by any
one when they could be made without imperilling his own life, he would,
by his conduct, draw upon himself the just censure and reproach of good
men; but this is the only punishment to which he would be subjected by
society," p. 519;. and Tillinghast, J.. King v. R. R., 23 R. I. 583 (1902), "That
defendant's conduct toward the plaintiff (their employe) in refusmg to carry
him home after his feet were frozen was highly reprehensible, morally
speaking, no one will question. Indeed, it is well-nigh inconceivable that
(their agents) could have been guiltv of so gross an act of mhumanity.
But courts of law can only take notice of legal rights, duties, and obliga-
tions, and must decide cases in accordance therewith, regardless of human-
itarian questions." p. 591.



liUCII T'. AMOKV MANLFACTURING CO. 3OI

hidden dangers — dangers which he hy ordinary care cannot discover
and, therefore, cannot avoid — on what ground can it be claimed that
they mu^t warn an infant of open and visible dangers which he is
laiablc to appreciate? Xo legal distinction is perceived between the
duties of the owners in one case and the other. The situation of the
adult in front of secret dangers which by no degree of care he can
discover, and that of the infant incapable of comprehending^ danger,
is in a legal aspect exactly the same. There is no apparent' reasojj
for holding that any greater or other duty rests upon the owners in
one case than in the other.

There is a wide difference — a broad gulf — both in reason and
in law. between causing and preventing an injury; between doing
by negligence or otherwise a wrong to one's neighbor, and preventing
him from injuring himself; between protecting him against injury
by another and guarding him from injury that may accrue to him
from the condition of the premises which he has unlawfully invaded.
The duty to do no wrong is a legal duty. The duty to protect against
wrong is, generally speaking and excepting certain intimate relations
in the nature of a f^-t n "^^^' - 'l nlili.":^*'^''"'' '^^"b" ^"""''" ^('co^mized or

or an unintelligent infant running into danger and does not w^arn
or forcibly restrain him ? AMiat difference does it make whether the
danger is on another's land, or upon his own, in case the man or
infant is not there by his express or implied invitation? If A sees
an eight year old boy beginning to climb into his garden over a wall
. stuck with spikes and does not warn him or drive him off, is he
liable in damages if the boy meets with injury from the spikes?
Dcgg V. Raikvay, i H. & N. 773, yjj. I see my neighbor's
two year old babe in dangerous proximity to the machinery of his
windmill in his yard, and easily might, but do not, rescue him. I
am not liable in damages to the child for his injuries, nor, if the
child is killed, punishable for manslaughter by the common law^ or
under the statute (P. S., c. 278, .y. 8), because the child and I are
strangers, and I am under no legal duty to protect him. Now sup-
pose I see the same child trespassing in my own yard and meddling
in like manner with the dangerous machinery of my own wind-
niill. What additional obligation is cast upon me by reason of the
child's trespass ? The me re fact that the ch ild is unable to take c are
of himself does not impose on me jhe leg aTdutvjpf jjrotecting him in
the one case more t han in the other. Upon what principle of law
can an infant by coming unlawfully upon my premises impose upon
me the legal duty of a guardian? None has been suggested, and we
know of none. * * *

Cases of enticement, allurement, or invitation of infants to their
injury, or setting traps for them, and cases relating to the sufficiency
of public ways, or to the exposure upon them of machinery at-
tractive and dangerous to children, have no application here.

The law no more compels the owners to shut down their gates
and stop their business for the protection of a trespasser than it
requires them to maintain a railing about an open scuttle or to fence
in their machinery for the same purpose. Benson v. Company, yy



\



302 UNION PACIFIC RAILWAY CO. V. CAPPIER

Md. 535 ; Mergenthaler v. Kirby, 79 Md. 182. There was no evi-
dence tending to show that the defendants neglected to perform any
legal duty to the plaintiff. McGuincss v. Butler, 159 Mass. 233, 236,
238; Griudley v. McKechnie, 163 Mass. 494; Holbrook v. Aldrich,
168 Mass. 15, 17, and cases cited. Verdict set aside: judgment for
the defe»da>its.-





NION PACIFIC RAILWAY CO. v. CAPPIER.

'^^V^ Supreme Court of Kansas, 1903. 66 Kan. 649.

^^ Smith, J. : This was an action brought by Adeline Cappier, the
mother of Irvin Ezelle, to recover damages resulting to her by
reason of the loss of her son, who was run over by a car of plaintiff
ii; error, and died from the injuries received. The trial court, at
the close of the evidence introduced to support a recovery by plain-
tiff below, held that no careless act of the railway company's servants
in the operation of the car was shown, and refused to permit the
case to be considered by the jury on the allegations and attempted
proof of such negligence. The petition, however, contained an aver-
ment that the injured person had one leg and an arm cut off by the
car-wheels, and that the servants of the railway company failed to
call a surgeon, or to render him any assistance after the accident,
but permitted him to remain by the side of the tracks and bleed to
death. Under this charge of negligence a recovery was had.

While attempting to cross the railway tracks Ezelle was struck
by a moving freight car pushed by an engine. A yardmaster in
charge of the switching operations was riding on the end of the
car nearest to the deceased and gave warning by shouting to him.
The warning was either too late or no heed was given to it. The
engine was stopped. After the injured man was clear of the track,
the yardmaster signaled the engineer to move ahead, fearing, as he
testified, that a passenger train then about due would come upon
them. The locomotive and car went forward over a bridge, where
the general yardmaster was informed of the accident and an ambu-
lance was summoned by telephone. The yardmaster then went
back where the injured man was lying and found three Union
Pacific switchmen binding up the wounded limbs and doing what
they could to stop the flow of blood. The ambulance arrived about
thirty minutes later and Ezelle was taken to a hospital, where he
died a few hours afterward.

In answer to particular questions of fact, the jury found that
the accident occurred at 5.35 P. M. ; that immediately one of the
railway employees telephoned to police headquarters for help for
the injured man ; that the ambulance started at 6.05 P. M. and
reached the nearest hosj)ital with Ezelle at 6.20 P. M., where he
received proper medical and surgical treatment. Judgment against
the railway company was based on the following question and
answer :

'Contra: Price v. Atchison Wafer Works, 58 Kans. 551 (1897); Sec-
tion 701 of the General Statutes of Colorado defines an accessory before tli^
fact as "a person who stands by, without interfering or giving such help as
may be in his or her power to prevent a criminal offense from- being com-
mitted." But a bystander is not bound to interfere at the*peril of his own
life. Farrell v. People, 8 Colo. App. 524 (1896). —



UNION PACIFIC RAILWAY CO. Z'. CAPPIIiR 3O3

"Ques. Did not defendant's employees bind up Ezelle's wounds
and try to stop the flow of blood as soon as they could after the
accident happened? Ans. Xo."

The lack of diligence in the respect stated was intended, no
doubt, to apply to the yardmaster, engineer and fireman in charge
of the car and engine.

These facts bring us to a consideration of the legal duty of
these employees toward the injured man after his condition became
known. Counsel for defendant in error quotes the language found
in Beach on Contributory Negligence, third edition, section 215, as
follows :

"Under certain circumstances, the railroad may owe a duty to^
a trespasser after the injury. When a trespasser has been run
down, it is the plain duty of the railway company to render what-
ever service is possible to mitigate the severity of the injury. The
train that has occasioned the harm must be stopped, and the in-
jured person looked after; and, when it seems necessary, removed
to a place of safety, and carefully nursed, until other relief can be
brought to the disabled person."

The principal authority cited in support of this doctrine is
Northern Central Railway Co. v. The State, use of Price et al., 29
Aid. 420, 96 Am. Dec. 545. The court in that case first held that
there was evidence enough to justify the jury in finding that the
operatives of the train were negligent in running it too fast over a
road-crossing without sounding the whistle, and that the number of
brakemen was insufficient to check its speed. Such negligence was
held sufficient to uphold the verdict and would seem to be all that
was necessary to be said. The court, however, proceeded to state
that, from whatever cause the collision occurred, it was the duty of
the servants of the company, when the man was found on the pilot
of the engine in a helpless and insensible condition, to remove him,
and to do it with proper regard to his safety and the laws of
humanity. In that case the injured person was taken in charge by
the servants of the railway company and, being apparently dead,
without notice to his family, or sending for a physician to ascertain
his condition, he was moved to defendant's warehouse, laid on a
plank and locked up for the night. The next morning, when the
warehouse was opened, it was found that during the night the man
had revived from his stunned condition and moved some paces from
the spot where he had been laid, and was found in a stooping
posture, dead but still warm, having died from hemorrhage of the
arteries of one leg, which was crushed at and above the knee. It
had been proposed to place him in the defendant's station-house,
which was a comfortable building, but the telegraph operator ob-
jected, and directed him to be taken into the warehouse, a place used
for the deposit of old barrels and other rubbish.

The Maryland case does not support what is so broadly stated

In Hardison v. Red, 154 N*. Car. 273 C1911V it was held that no action
lies against a notary public, to whom the plaintiff, a bidder for jhe. position
of United States mail carrier, had submitted his bond for acknowledgment
and whom he had requested not to divulge the amount of his bid. for under-
bidding the plaintiff. "The plaintiff is the victim of misplaced confidence"'
but the confidence was unsolicited and gratuitous. Besides an express agree-
ment not to bid would have been void as depriving the government of the
benefit of competition and so against public policy.



304 UNION PACIFIC RAILWAY CO. V. CAPPIER

in Beach on Contributory Negligence. It is cited by Judge Cooley, in
his work on Torts, in a note to a chapter devoted to the ncghgence
of bailees fch. XX), indicating that the learned author understood
the reasoning of the decision to apply where the duty began after
the railway employees had taken charge of the injured person.^

After the trespasser on the track of a railway company has
been injured in collision with a train, and the servants of the com-
pany have assumed to take charge of him, the duty arises to exer-
cise such care in his treatment as the circumstances will allow. We
are unable, however, to approve the doctrine that when the acts of
a trespasser himself result in his injury, where his own negligent
/conduct is alone the cause, those in charge of the instrument which
inflicted the hurt, being innocent of wrong-doing, are nevertheless
blamable in law if they neglect to administer to the sufit'erings of
him whose wounds we might say were self-imposed. With the
humane side of the question courts are not concerned. It is the
omission or negligent discharge of legal duties only which come with-
in the sphere of judicial cognizance. For withholding relief from
the suffering, for failure to respond to the calls of worthy charity,
01 for faltering in the bestowment of brotherly love on the un-
fortunate, penalties are found not in the laws of men but in that
higher law, the violation of which is condemned by the voice of con-
science, whose sentence of punishment for the recreant act is swift
and sure. In the law of contracts it is now well understood that a
promise founded on a moral obligation will not be enforced in the
courts. Bishop states that some of the older authorities recognize a
moral obligation as valid, and says :

"Such a doctrine, carried to its legitimate results, would release
the tribunals from the duty to administer the law of the land ; and
put, in the place of law. the varying ideas of morals which the
changing incumbents of the bench might from time to time enter-
tain." (Bish. Cont. § 44.)

Ezelle's injuries were inflicted, as the court below held, without
the fault of the yardmaster, engineer or fireman in charge of the
car and locomotive. The railway company was no more responsible
than it would have been had the deceased been run down by the
cars of another railroad company on a track parallel with that of
plaintiff in error. If no duty was imposed on the servants of de-
fendant below to take charge of, and care for, the wounded man



' In Northern Central Raihvay Co. v. The State, use of Price, et al.
(1868), the contention of the plaintiff's counsel on this point was that there
had been, not a mere omission only, but an improper "act" — misfeasance in
the performance of a voluntary undertaking— "in other words, the simple
case of a mandatary or depositary"— citing Lord Holt, Cogg v. Bernard, 2
Ld. Raym. 909-911, "An action will not lie for not doing the thing, for want
of a sufficient consideration; but yet if the bailee will take the goods into
his custody, he shall be answerable for them; for the taking the goods into
his custody is his own act."

So in Rhode Island, while it was held in King v. R. R., 23 R. I. 583
(1902), that a Railway Co. was not bound to carry home an employee whose
feet had been frozen, a Railway Co., which did assume the task of conveying
home an injured employee, was held to be liable for his death due to its
failure to cover and protect him while in transit, Brcsnahan v. Lonsdale Co.,
51 Atl. 624 CR. T., 1900) ; Accord: Dyche v. R. R., 79 Miss. 361 (1901), where
a wounded trespasser was placed in a car and. being completely forgotten,
was ferried back and forth across the Mississippi instead of being at once
taken to a hospital; Contra: Griszuold v. R. R., 183 Mass. 434 (1903). semble.



UNION PACIFIC RAILWAY CO. V. CAPPIER 3O5

in such a case, how could a duty arise under the circumstances of
the case at bar? In Barrows on XegHgcnce, page 4, it is said:

"The duty must be owing from the defendant to the plaintiff,
otherwise there can be no negligence, so far as the plaintiff' is con-
cerned ; . . . and the duty must be owing to plaintiff' in an individual
capacity, and not merely as one of the general public.

"This excludes from actionable negligence all failures to observe
the obligations imposed by charity, gratitude, generosity, and the
kindred virtues. The moral law would obligate an attempt to rescue
a person in ?. perilous position — as a drowning child — but the law of
the land does not require it, no matter how little personal risk it
might involve, provided that the person who declines to act is not
responsible for the peril." (See, also, Kenney v. The Hannibal & St.
Joseph Railroad Company, 70 j\Io. 252, 257.)-

In the several cases cited in the brief of counsel for defendant
in error to sustain the judgment of the trial court it will be found
that the negligence on which recoveries were based occurred after
the time when the person injured was in the custody and care of