Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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Whenever there has been notice of the danger, and freedom of
action, the injured party has been compelled to bear the consequences
of the action irrespective of the character and degree of negligence
of other parties. (Gould v. Oliver, 2 Scotts. N. R., 257; Ilott v.
Wilkes, 3 B. & Aid., 311 ; Slogan v. Slingerland, 2 Caines, 219; Per
]\Iarvin, ]., in Corwin v. N. Y. and E. R. R. Co., 3 Ker., 42; per
CowEN, J., in Hatfield v. Roper, 21 W. R., 620.) The doctrine
applicable to voluntary payments of money not recoverable by law
grows out of this rule of law, and the rules governing in cases of
contributing negligence of the injured party is nearly allied to, if not
an outgrowth of the maxim volenti non fit injuria.

Whether the defendant was or was not guilty of negligence, or
whatever the character and degree of the culpability of the defendant
and its servants is not material. The testator had full view of the
train and saw, or could have seen, the manner in which it was
made up, and the locomotive attached, and the speed at which it
was approaching, and, if in the exercise of his free will, he chose
for any purpose to attempt the crossing of the track, he must take
the consequence of his act. The defendant may have been running
the train improperly, and perchance illegally, and so as to create a
legal liability in respect to any one sustaining loss solely from such
cause, but the company is not the insurer of, or liable to those who,
of their own choice and with full notice, place themselves in the
path of the train and are injured.

It is not the law that the co-operating act of the injured party
must be culpable or wrong in intention. It may be merely negligence
or the result of the free exercise of the will. (Per Beardslev, J..
Tona-cvanda R. R. Co.. v. Mungcr, 5 Dcnio, 255.) The rescue of the
child from apparent imminent danger was a praiseworthy act and
entitled the plaintiff to the favorable consideration of the court and
to a lenient an^l liberal interpretation and application of the rules of
law^ in her behalf. But the i)rinciplcs of law cannot yield to particu-
lar cases.

The act of the intestate in attempting to save the child was law-
ful as well as meritorious, and he was not a trespasser upon the
property of the defcntlant, but it was not in the performance of any
duty irnposed by law. or growing out of his relation to the child,
or the result of any necessity. There is nothing to relieve it from


the character of a vohintary act, the performance of a self-imposed
duty, with full knowledge and apprehension of the risk incurred. -
Evansvillc R. R. Co. v. Hyatt (17 Ind., 102), is in circumstance
somewhat like the case before us, and the decision is in accord with
the views herein expressed.

I am of the opinion that the judgment of the Supreme Court
and of the City Court of Brooklyn should be reversed and new trial
granted, costs to abide event.

FoLGER, J., concurred in the foregoing opinion.

Judgment affirmed.


Supreme Court of lozva, 1890. 81 Iowa, 246.

Robinson^ J. — The allegations of the petition which the demur-
rer admits to be true are substantially as follows : On the third day
of November, 1888, William Ortman owned, and with plaintiff and
his family occupied, a certain farm in O'Brien county. Ortman
owned some horses, which were kept in a barn on the farm, an3
plaintiff owned some hogs, which were kept in a pen outside the
_barn^ On the day named, an engine on the railway of defendant set
fire to grass and weeds on its right of way at a point opposite the
premises of Ortman. A high wind was blowing at the time, which
spread the fire rapidly, driving it in the direction of the barn. Plain-
tiff and Ortman saw the fire immediately after it started, and'^enT^
to it, and tried to put it out. Failing in that, they retreated to^a
traveled way which crossed the prairie between the fire and the barn,
and attempted to stop the fire by sprinkling water on the grass.
Their efforts were ineffectual, and they then started to save the
horses and hogs. They first entered the barn, the plaintiff believing
that there would be ample time in which to remove the horses before
the fire, which was more than one hundred feet away, could reach the
building. Prior to that time the head fire had been running towards
a point at one side of the barn, but at that time it reached higher
ground, and, catching full force of the wind, was driven directly
towards the barn. When the horses were unfastened, and were
being taken from the barn, plaintiff discovered that the fire had
reached the door which afforded the only means of escape, and that,
in order to escape, he was compelled to and did pass through the
fire ; that in doing so both his legs, his right hip, both hands, and
his right elbow were badly burned, his face was badly burned and
disfigured, and his eyes injured. By reason of the injuries so
received, plaintiff was confined to his bed nine weeks, and suffered
greatly in mind and body, and his health has been seriouslv and per-
manently impaired. The count of the petition also alleges that
the fire was caused by negligence on the part of defendant, and that
plaintiff was free from negligence. The demurrer is as follows :

' See accord: Mitchell, C. J., diss., in Corbin v. City, supra, n. i. and
Lords Justice-Clerk, Trayner and Adam in Wilkinson v. Kinneil Co., supra,

H. I.


"Defendant demur? to the first count of plaintiff's petition for the
following reasons : Virst. The allegations set out in the first count
for personal injury to plaintiff do not show that the negligence of
defendant was the proximate cause of the injury complained of.
Second. The said count shows that the injury complained of was
received by plaintiff while he was engaged in trying to save the
property Qf one - QjjjTi an, and that s aid injury was not directly or_
approximately caused or contributed to by the negligence of de-

Section 1289 of the Code provides that "any corporation operat-
ing a railway shall be liable for all damages by fire that is set out ■
or caused by operating of any such railway." It is admitted that
the damages in question were caused by a fire which the defendant
set out in operating its railway, but it is said that the fire was not the
proximate cause of the injuries sustained by plaintiff. It is further
said that but for the intervention of his own voluntary act he would
have sustained no injury , and, th erefore^ that_his xiwa act was the
prox imate^cau&e^i hii^ irrjnTies.

The question presented for our determination is not free from
difficulty. Defendant is not liable unless its wrongful act was the
proximate cause of the damages in suit. * * *

But it often happens that the wrongful act or negligence of a
party would be harmless but for the voluntary act of the person in-
jured, as in cases of injuries from defects in streets, sidewalks, roads
and bridges ; yet in a case of that kind the act of the person injured
in traveling the defective way is not regarded as a new or inde-
pendent cause of the accident which follows. If he be free from
negligence he is entitled to recover for the injuries he sustains, for
he was doing only what the law authorized, and what the corpora-
tion, responsible for the condition of the way, was bound to antici-
pate and provide for while the way remained open for travel. The
negligence of the corporation is the proximate, although the act of
the person injured is the more immediate, cause of the injury, i
Suth. Dam. 62. Qne who, a ctings \vitli reasoiiable prudence, voliiii-.

tarily exE lQSes bini^pltlQ-^langpr jFor th^ pnrpnso nf prntrrting the.
person of another, may reco ver for the consequent injuries he r e-
ceiv^s from the person 'whoTe wrong caused' the mjury to himself,
aiTd'the danger to, the person he sought to aid. Luinchan v. Samp-
son, 126 Mass. 506; Cottrill v. Raihcay Co., 47 Wis. 634; 3 X. W.
Rep. 376; Raihvay Co. r. Crosby, 74 Ga. 737; Eckcrt v. Raikvay
Co., 43 X. Y. 502. The same has been held to be true of one who
under similar conditions is injured in an attempt to protect his own
property. JVasiner v. Raikvay Co., 80 X^. Y. 212; Re.vtcr f. Starin,
73 N. Y. 601.^ In Eckert v. Raiki'ay Co., supra, it was said, in effect,
that a person might expose himself to greater danger without negli-
gence in attempting to save human life than he could in attempting

* In Re.vtcr v. Starin the owner of a boat moored at a wharf, with which
defendant's steamer threatened to collide, went upon it to, if possible, avert
the impending collision and was injured. It was held that "he had the right
to do so, almost a duty"; in iras)ucr v. R. R. the plaintiff ran in front of a
moving train to take charge of his horse frightened by defendant's negligence.


to save property. It is not claimed that the right to recover in such
cases depends in any respect upon the legal liability of the person
injured to do that which he was attempting to do when the injuries
were received, but rather upon his moral obligation rnd right to
do it.

In this case the plaintiff did not receive the injuries of which
he complains in any attempt to protect human life, nor in trying to
save his own property. So far as we are advised by the record, he
was under no legal obligation to protect the property of his neighbor;
yet his attempt to do so was entirely lawful, and was most praise-
worthy. If he had failed to make a reasonable effort to save it,
he would have merited the censure and contempt of his neighbors;
and this would have been so notwithstanding the fact that defendant
may have been liable for all loss which could occur, and that what
he accomplished would inure to its benefit. It is the duty of every-
one, according to the requirements of an enlightened aij^^jiistpublic


sentiment, to use reasonable efforts to preserve th e. propeHy "
others from threatened destruction ; and, as is well known, it is'
duty which people generally are quick to. discharge. The defendant
could have foretold, with almost absolute certainty, when it set the
fire in question, that plaintiff, being near, would use every reasonable
means in attempting to save Ortman's horses from the flames, and
there was nothing surprising or unusual in the attempt he made, j
Under the circumstances of the case, it was the natural and proBaBle"
result of the wrong of defendant. > A person would not be justified
in exposing himself to as great danger in saving 'property as he
would in saving human life,^ and whether the person injured acted
with reasonable prudence would, in most cases, be a question of
fact depending upon the circumstances under which the act was
done. In Harris v. Tozvnship of Clinton, 64 Mich. 447; 31 N. W.
Rep. 425, it was said that "it is not a universal rule that the defend-
ant is excused from liability merely because the plrintiff, knowing
of the danger caused by the defendant's negligence, voluntarily in-
curs that danger. If the defendant has so acted as to induce the
plaintiff, acting with reasonable prudence, to incur the danger, * *
* the defendant is liable." ^

The case of Seale v. Raihvay Co., 65 Tex. 274; s. c, 57 Am.
Rep. 602, is relied upon by appellee, and in some respects it seems
to support the ruling of the district court. In that case the court
says that the defendant should have anticipated that its negligence
would endanger the property of plaintiff, and that she and perhaps
others would attempt to extinguish the fire, but that it could not have

* In Pa. Co. V. Langendorf, 48 Ohio, 316 (1891), it ts said that a plaintiff
may brave a very high degree of danger where human life is at stake.

' So where a passenger tried to jump from a runaway trolley car it was
held that the company by its negligence having put her to a choice of perils
could not complain of the alternative which she selected, Lehner v. Ry. Co.,
222, Pa. 208 C1909) : Palmer v. Ry. Co., 206 Pa. 574 Tigo,!), "in trying to save
herself, the plaintiff was, at the same time, unconsciously trying to save the
company from the consequences of its negligence, and of her efifort to do so
it ought to be the last to complain, unless it is manifest that she acted rashly
and imprudently," and see Aspell v. R. R., 23 Pa. 147 (1854).


anticipated that, in that attempt, Hfe would have been lost without
negligence on the part of the person killed. The conclusion of the
court seems to rest upon the theory that the petition showed that
the death of the deceased was the result of her own negligence. But,
under the facts of this case as admitted by the demurrer, the plaintiff
was not negligent. It is true that but for the voluntary act of
plaintiff he would not have been injured. As we have seen, how-
ever, that act, although voluntary in one sense, was invited and
induced by the wrong of defendant, and the consequent injuries were
the natural and direct result of that wrong. The order of the
district court is reversed.*


Duties Created by Legislative Enactments and Municipal



Supreme Court of Minnesota, 1885. 33 Minnesota, 323.

Vanderburgh, J. The charter of the city of St. Paul empowers
the city council by ordinance, to compel persons to fasten their horses
or other animals attached to vehicles, while standing in the streets ;
such ordinance to have the force of law within the municipal juris-
diction, and to be enforced by the proper penalties. In pursuance
of this provision the following ordinance was passed, and was in
force when the accident out of which this action arose, occurred:
"It shall not hereafter be lawful for any teamster or driver or own-
er, or any person or persons having in charge any team attached to
any vehicle within the city of St. Paul, to leave the same standing in
or along any public street in said city, without being securely hitched

* See accord: III. Cent. R. R. v. Siler, 229 111. 390 (1907), owner of
dwelling house injured while trying to extinguish fire which threatened to
reach it; Berg v. G. N. R. R., 7o Minn. 272 (1897), owner injured while trying
to save his property negligently set on fire by defendant: Contra, Cook v.
Johnston, 58 Mich. 437 (1885), woman burned while trying to rescue her
husband's horses from a burning shed, and Logan v. Wabash R. R., 96 Mo.
App. 461 (1902), plaintiff burned while trying to save his hay negligently set
on fire by defendant. In Glans V. R. R., 119 Iowa, 611 (1903), it was held
that a woman could recover for the injurious consequences of overexerting
herself in her efforts to save her husband's property. In Page v. Bucksport,
64 Me. 51 (1874), it was held that one whose horse breaks through the de-
fective flooring of a bridge is bound to attempt to save it and would be
guilty of negligence if he failed to make all reasonable attempts to do so and
may recover for injuries received while attempting its rescue; ace. Cooper v.
Richland Co., 76 S. C. 202 (1907) ; contra, Crozdey v. City of JVest End. 149
Ala. 613 (1907).

So in Mason v. Yockey, 103 Fed. 265. 43 C. C. A. 22S (1900), it was held
that where an engineer who discovers, while running an engine, that it is
dangerously defective, being unalile to avoid the danger without abandoning
the engine and blocking traffic and subjecting the persons in the trains to
danger of collision, does not assume the risk of injury therefrom by continu-
ing to perform his duty as engineer.


or fastened, or without being held by someone securely." The de- \
fendants left a team of horses, attached to a wagon loaded with \
wood, in a public street, standing unhitched, and for the time without "j
being held or in the charge of any one; the driver, the defendants' I
servant, having temporarily left them, to make inquiry in reference J
to the place of delivery of the wood. In his absence the team started j
and ran down Wabasha street, one of the most public thoroughfares /
in the city, across the bridge over the Mississippi river, and, colliding^
with the plaintiff's wagon, caused the injury complained of. There
was no evidence showing the particular circumstances which caused
the horses to take fright and run away. But the plaintiff's case rests
upon the facts above stated, which are undisputed.

The questions of fact as to the character and extent of plaintiff's
injuries, and whether he was guilty of contributory negligence in the
premises, and also whether the fact that the team was left unfastened
and unguarded in a public street was the proximate cause of the in-
jury, were settled by the verdict. Milzvaukee & St. Paul Ry. Co. v.
Kellogg, 94 U. S. 469.

The only question, then, remaining for our consideration, is the
question of the liability of the defendants in a civil action for the
natural and probable consequences of the unexecused omission of
their servant to fasten the team. ' We say tmexcused, because, in
view of the language and purpose of the charter and ordinance, it is
manifestly no sufificient excuse that the horses were believed to be
gentle, and not vicious, and had never been known to run away. If
the action were simply an ordinary action for negligence, in the ab-
sence of any statutory duty, these circumstances, with others, might
have been considered by the jury in determining the question of neg-
ligence, — Griggs V. Fleckenstein, 14 Minn. 62, (81,) — though, in sucir\
an action, the fact that the horses ran away, and were not properly )
hitched, would be evidence of negligence in not fastening thenL/
Strup V. Edcns, 22 Wis. 432; Courtenier v. Secomhe, 8 Minn. 264,
(299.) But in refusing defendants' instructions to the jury, the
court rested the action upon the breach of the ordinance, and in sub-
stance charged them that the fact of so leaving the horses unattend-
ed, and of the runaw^ay and injury to the plaintiff in consequence,^ if

* The plaintiff must show not merely the wrong, the violation of the
statute or ordinance, but also that his injury is the legally proximate result
thereof. Stacey v. Knickerbocker Ice Co., 84 Wis. 614 (1893), the barriers
required by the statute "would have been but gossamer" before the onrush of
plaintiff's frightened horses ; Brown v. Siegel Cooper Co., 90 111. App. 49
(1899) ; Weinberger v. Kratzenstein, 71 N. Y. Supp. 244 (1901), failure to
supply required trap door which even if provided would have been open
when injury was received; Gt. Southern R. R. v. Chapman, 80 Ala. 615 (1886),
failure to stop train as required by statute on observing presence of tres-
passing cattle when seen so late as to make stopping of no avail ; Kidder v.
Dunstable. 11 Gray, Mass. 342 (1858), a collision with sleigh unprovided
with required bells.

Whether the violation of a statute is the cause of the plaintiff's iniury is
determined by the same rules and principles which govern liability for the
results of any other species of wrongful act or omission. R. R. v. Barnes,
2 Ind. App. 213 (1891) ; True &• True v. Woda, 104 TH. App. 15 (1902).


the jury should so find, cstabhshed a case against the defendants.
The case turns upon the correctness of these instructions.

Highways are dedicated to the use of travellers, and hence it is
held to be the law that where horses are unlawfully turned loose or
permitted to be at large in a public street by the owner, he is liable
for any resulting injury or trespass, without reference to the question
of previous knowledge of their vicious disposition or character.
Barnes- V. Cliapin, 4 Allen, 444; Goodman v. Gay, 15 Pa. St. 188,
193.- In Barnes v. Chapin the court say, (p. 446:) "It has long
been regarded as inconsistent with the safety and convenience of
travellers to permit horses to go at large on the highway, and such
an act is an offence against our statutes." The difference between
that case and this is that while the defendants' horses were rightfully
on the public street, they were unlawfully left unguarded. The
^breach of duty arising from the violation of the statute in one case,
and the ordinance in the other, is of the same nature, and the conse-
quences the same, as relating to the safety of a person using the
streets. Travellers on a highway would have a right to assume that
the statutes referred to were made for their protection, and that they
were therefore entitled to the benefit thereof in enforcing a claim for
damages against persons through whose neglect to observe the re-
quirements of such statutes they have suffered injury. And so it is
insisted by the plaintiff in this action that this ordinance is binding
as law upon the inhabitants of the city; that it was lawfully made for
a similar purpose, and involves like duties and responsibiHties, as
respects persons within the municipal jurisdiction. This point will
be further considered in the course of the opinion.

A\'herever a statute creates a duty or an obligation, then, though
it has not in express terms given a remedy, the remedy which is by
law properly applicable to that obligation follows as an incident.
Addison on Torts, § 58; Parker v. Barnard, 135 jMass. 116; Patter-
son V. Detroit, etc., R. Co., 22 X. W. Rep. 260. But whether a lia-
bilitv arisinsr from the breach of a statutorv dutv accrues for the
benefit of an individual specially injured thereby, or whether such
liability is exclusively of a public character, must depend upon the
nature of the duty enjcir.ed. and the benefits to be derived upon the
performance.^ Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74;
Hayes v. Mich. Central R. Co., 11 1 U. S. 228, 240; Coolev on Torts,


To illustrate: Patterson v. Detroit, etc., R. Co.. sitpra. was an
action for damages by a traveller, against defendants, for obstructing

-Sec contra, Marsh v. Koons, 78 Ohio 68 (1908).

' "The nature of the duty and the benefits to be accomplished through its
performance, must generally determine whether it is a duty to the public
in part or exclusively or whether individuals may claim that it is a dr.ty
inioosed whollv or in part for their especial benefit", Cooley, C. J.. Taylor v.
R.R.. 45 Midi. 74, 77 (1881). Where "the duty is due not to the city a* a
municipal body, but to the pulilic considered as composed of individual per-
sons ; each person specially injured by the breach of the obligation is entitled
to his individual compensation and to an action for its recovery", Matthews,
J., Hayes v. R. R., Ill U. S. 228, 240 (1883). "The present general, if not
universal, trend of American authorities, is to construe legislative enact-
ments of this type as creating a duty to both the public and to private in-
dividuals, and to liberally interpret ihe class of persons for whose benefit the
law was made;" Jaggard, J., Anderson v. Settcrgren, 100 Minn. 2S>A (.1907),
0. 297; plaintiff, who was shot bv a boy of thirteen, was held entitled to re-


a highway in violation of the provisions of a statute prohibiting rail-
way companies from obstructing a street-crossing longer than five
minutes. Parker v. Barnard was an action for damages by a person
injured through defendant's omission, in disregard of a statute, to
protect a hatchway by a railing. Hayes v. Mich. Central R. Co. is
a case where, as in this case, an action for damages was predicated
upon the negligent omission to comply with an ordinance which a city
had passed under legislative authority, and which was intended as a
protection to persons from injuries. In Salisbury v. Hcrchenroder,
io6 Mass. 458, plaintiff recovered damages occasioned by the falling
of a sign (in an extraordinary gale) which had been suspended by
defendant over a street, contrary to a city ordinance, and defendant
was not otherwise negligent. In Owings v. Jones, 9 Md. 108, 117,
the defendant was held liable for consequent damages to a party in-
jured through a negligent omission to comply with the provisions of
a city ordinance which provided the mode in which vaults in public
streets should be protected. In Devlin v. Gallagher, 6 Daly, (N. Y.)
494, a failure to comply with the provisions of an ordinance requiring
certain precautions in blasting, was held prima facie evidence of neg-
ligence, sufficient to support an action by one injured through such
default. In Baltimore City Ry. Co. v. McDonnell, 43 Md. 534, under
a city ordinance limiting the speed of cars to six miles an hour, the