Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 51 of 124)
Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 51 of 124)
Font size
QR-code for this ebook

defendant was held liable if the jury believed from the evidence that
the accident would have been avoided if the cars had not been mov-
ing at a greater speed. Johnson v. St. Paul & Duluth R. Co., 31
Minn. 283 ; Carroll v. B. C. R. & M R. R. Co., 38 Iowa, 120; Sienters^^
v^EiseMy 54 Cal. 418.

^^"TThe'city^ ordinance under consideration was undoubtedly intend-
ed for the benefit of persons travelling on the streets, and all such
persons while so travelling would have the right to expect the ordi-
nance to be observed and to govern themselves accordingly. Wright
V. Maiden & M. R. Co., 4 xMlen, 283; Lane v. Atlantic Works, iii
Mass. 136.

On the other hand, where the duties enjoined are due to the mu-
nicipality or to' the public at large, and not as composed of individ-
ualSi_adifferent rule is intended to apply.'^' This is wel l illu strated by;

cover against tHe vendor of the gun and cartridges under an act maRIng it
unlawful for a child under fourteen- to have possession of firearms and mak-
ing it a misdemeanor to violate the act.

Acts prohibiting child labor are generally construed to be passed, in
part at least, to protect the children from injury, and if employed while
under legal age they may recover for injuries received while at work, Stchle
V. Jaeger Automatic Machine Co., 220 Pa. 617 (1908), but where the child
is over the age at which he is permitted to work, a failure to file the affidavit
of age required by the statute will not give the boy a right to recover for
injuries received while at work, Piatt v. Southern Photo Material Co., 4
Ga. App. 159 (1908).

* Atkinson v. ."Newcastle Water Works, L. R., 2 Ex. D. 441 (1877), failure
to supply water as required by act sufficient for use at fires, plaintiff's house
burned in consequence. The act in effect was as Lord Cairns said, p. 448,
"Not an act of public and general policy but rather in the nature of a private
legislative bargain with a body of undertakers as to the manner in which
they would keep up certain public works", see ace. Clegg, Parkinson & Co.
V. Earhy Gas Co., L. B. (1896), i Q.B. 592, Wills, J., p. 594, "Where there
is an obligation created by statute to do something for the benefit of the
public generally, or of such a large body of persons that they can only be dealt
with practically en masse. ?s it were, and where the failure to comply with


the cases of K'xrh-^ v. Boylston Market Assn., 14 Gray, 249, and
Flynn v. Cantun Co., 40 Aid. 312, ^2^, in which it was held that the
owners of land abutting on streets were hable to the city alone for
the breach of ordinances requiring such owners to keep sidewalks
clear of snow and ice, and in good repair, and that they were not
hablc in damages to persons injured by their neglect to perforin the
duties enjoined by such ordinances. This proceeds upon the ground
that it is the sole duty of the city to keep the streets in good repair,
and clear of snow and ice. The work done, and fines or taxes col-
lected in such cases, to the extent thereof, are to be considered as so
far in aid of the city in the discharge of its duty.'^ See, also, Taylor
V. Lake Shore & M. S. R. Co., supra; Heeney v. Sprague, 11 R. I.
456. And so, also, generally of ordinances or statutes relating spec-
ially to duties due strictly to the corporation or state.

The analogy between statutes and the ordinances of cities is, of
course, not to be extended beyond the proper limits of municipal ju-
risdiction. But in matters properly of local cognizance it is neces-
the statutory oblig'ation is liable to affect all such persons in the like man-
ner, though" not necessarily in the same degree ; there is no separate right
of action to every person injured, by breach of the obligation in no other
manner than the rest of the public" ; here plaintiff's business was injured by
insufficient supply of inferior gas.

Where an ordinance or statu'e authorizes, ratifies or regulates the terms
of a contract between a municipality and a public service corporation supply-
ing public necessities, such as water or gas, there is generally no private right
of action recognized throughout the United States. Boston Safe Deposit Co.
V. Salem Water Co., 94 Fed. 238 (1899) ; Love joy v. Bessemer Water Works
Co., 146 Ala. 374 (1906), and cases cited, contra, Poducah Lumber Co. v.
,Paducah Water Co., 8p Ky. 340 (1889) ; Gorrell v. Water Co., 124 N. C. 328
(1899), and Mngge v. fampa looter Co., 42 So. R. 81, Fla. 190O, and Cf. Trust
Co. V. Fisher, 200 U. S. 57 (1905)-

So when the object of the statute or ordinance is the promotion of pub-
lic order and not the advantage of individuals, as in the case of the so-called
Sunday laws, Tingle v. R. R., 60 Iowa ^22, 1882; see, violations of similar
acts as contributory negligence, Sutton v. Wauwatosa, 29 Wis. 21 (1871), and
Plate V. Cohoes, 89 N. Y. 219 (1882), and cases cited therein; but see, contra
Bosworth V. Swansey, 10 Mete, Mass. 363 (1845), and Johnson v. Irashurgh,
47 Ver. 28 (1874). So in Berry v. Sugar Notch Boro., 191 Pa. 345 (1899'),
plaintiff struck by falling tree not barred by fact that when struck he was
driving a trolley car at a speed prohibited by ordinance. So one violating
an act of Parliament designed to prevent obstruction of traffic is not liable
to wayfarers whose property is injured in consequence unless some injury
of this sort was under the circumstances probable from the nature or manner
of the violation. Sharp v. Pozvcll. L. R. 7 C. P. 2',3 (1S72: 49 Am. L.
Reg. p. 84. See also, as to public nuisances, Fairbanks v. Kerr, 70 Pa.
86 (1871), p. 91. "The nuisance and the civil injury are different things."
A street speaker collected a crowd, some of whom stood on and injured
plaintiff's property; Allegheny v. Zimwcrnian. 95 Pa. 2S7 dSSo"), p. 294.
"Conceding that the city might have been indicted for suffering the pole (a
Liberty pole in the middle of the street), to remain * * * jt does not
necessarily follow that this action for damages ffor injuries received by
its fall) would lie"; Burbank v. Bethel Steam Mill Co., 75 Maine 375 C1883),
p. 381; fire set by steam engine operating without license reauired bv statute:
so even where the nuisance is private the iniurv must be of the sort threat-
ened by it, Botvdcn v. Lewis, 13 R. T. 180 (1881) : see also. Bosch v. R. R.,
44 la- 402 (t876\ defendant's cars blocked the plaintiff's way to « river, so
that firemen could not get water to put out a fire which burned his house.

* The reason why the duty created by statutes and ordinances requirincc
lot owners to keep sidewalks '" ren^-*- p'^d rte^r of obstruction is reearded
as public only, is stated mor^^ frllv -•-'^ "-'th greater accuracv in Rorhrstcr v.


sary and eminently proper that such powers should be committed to
the municipality, to be exercised through ordinances which shall be
subordinate to and consistent with the general laws, or in proper
cases be authorized to take their place. Cooley, Const. Lim. ^199^
An ordinance which a municipal corporation is authorized to make,
is as binding on all persons within the corporate limits as any stat-
ute or other laws of the commonwealth, and all persons interested
are bound to take notice of their existence. Heland v. City of LolXF^
ell, 3 Allen, 407 ; Vandinc's Case, 6 Pick. 187 ; Gilmorc v. Holt, 4 Pick.
257; Johnson v. Sunwnton, 43 Cal. 242, 249.

As respects the ordinance in question, it was, as we have seen,
authorized by the charter, was within the proper sphere of municipal
legislation, and not inconsistent with or in contravention of general
laws, and, though local in its application, it was obligatory upon per-
sons within the limits of the city ; and there is no reason why it
should not be held to impose a legal duty, such that a civil action for
damages might be maintained for a breach thereof, as in the case
of like statutory duties. Hayes v. Mich. Central R. Co. supra;
Mason v. City of Shawncetown yj 111. 533; Flynn v. Canton Co., 40
Md. 312; Jackson v. Shazvl, 29 Cal. 267. Some courts, however,
deny the application of the rule in case of city ordinances, and insist
that it is applicable solely to laws enacted by the legislature. Heeney
V. Spragiic, II R. I. 456; Vandyke v. City of Cincinnati, i Disney,
(Ohio,) 532; Philadelphia & R. R. Co." v. Ervin, 89 Pa. St. 71.
These were cases arising out of a failure to comply with ordinances
similar in character to the one considered in Flynn v. Canton Co., and
might have been disposed of on the same ground, and were rightly
determined without necessarily involving the question we are con-

A different view is also suggested in Chambers v. Ohio Trust
Co., I Disney, (Ohio.) 327, 336; and in Knupfle v. Knickerbocker
Ice Co., 84 N. Y. 484, it was held by a divided court that the result
of the decisions in New York is that a breach of a municipal ordi-
nance is evidence of negligence merely, to be considered with other
facts in the case.^ But we do not regard the case of much value as
Campbell, 123 N. Y. 405 (1890), p. 415 et seqTzwd Manchester v. 'Hartford',

30 Conn. T18 ('T862y „ , „. ^ ,, , j

Accord- Manchester v. Hartford, 30 Conn. 118 (1861) ; Hartford v.
Talcott, 48 Conn. 52^ (1881) ; Kirhy v. Boylston Market Assoc, 14 Gray
240 (Mass 1859), "Work under such ordinances relieves to the extent ot
its cost or value from charges to which otherwise it would be necessarily
in discharge of its municipal duties subjected to;" Keokuk v. Keokuk, 53
Iowa 352 (1880). such ordinances are "simply a method of exercising its
(the city's) power of taxation by which he (the lot owner) is made the
agent of the citv to expend the amount of the tax and the responsibility for
the performance' of the work remains where the power to control it is found.
''While Heeney v. S Prague and Vandyke v. Cincinnati might have been
fkcided on this ground neither P. & R. R. R. v. Erwin nor Chambers v.
Trust Co. are capable of being so explained nor in the latter case is anything
said of the admissibility of an ordinance as evidence of negligence to be
considered with other facts.

'Violation of an ordinance is held to be negligence per se m Toledo.
Wabash, etc., R. R. v. O'Connor, 77 III 391 (1875) ; f/.nV.d' .S-/a;.^ i?r.^|n,y
Co V. Stoltenberg, 211 111. 531 (1904) ; Correll v. R. R., 38 Iowa 120 (1874; ,


an authority. The rule is to be regarded as a common-law rule, and
it would hardly be consistent or reasonable to hold that it might be
applicable to an act of the legislature, and inapplicable where the. leg-
islature, instead of itself enacting a law, should, in a proper case, ex-
pressly authorize a municipal corporation to make the same law for
the local jurisdiction. Suppose, for instance, that the legislature had
itself expressly enacted the substance of the ordinance in question
in the charter, instead of authorizing the city council to enact it :
could it be said that in the former case an injured party would be
entitled to indemnity, and in the latter not? In this class of cases,
therefore, proof of a breach of the ordinance will make a case of
negligence ; but, of course, the plaintiff must make it appear, as the
court properly charged the jury in this case, that the injury complain-
ed of resulted from the alleged neglect of the duty thereby imposed ;
and so defendant may show, as matter of defence, that the accident
occurred without his fault, or that the observance of the ordinance
was immaterial as respects the plaintiff; as, for instance, in the case
of the omission to ring the bell of an engine, of the approach of
which the plaintiff otherwise had notice. ^

Order affirmed.

Supreme Court of New Jersey, 1904. 71 A"". /. L. 358.

Gum MERE, Chief Justice. The plaintiff sues to recover com-
pensation for injuries received by him by falling through an un-
guarded elevator shaft in the defendant's factory.

The declaration avers that the plaintiff was a fireman in the
employ of the fire department of the city of Passaic and at the time
of the accident, which occurred in the night-time, was in the defend-

^ciuereth v. M. P. K. K., 96 Mo. 509 (1888) ; Brannock v. Elmore, 114 Mo.
55 (1892); and R. R. v. Brown, 11 Tex. Civ. App. 503 (1895).

It has been held pruiia facie evidence in the following cases : Briggs v.-
N. Y. etc. R. R., 72 N. Y. 26 (1878) ; Wabash R. R. v. Kamradt, 109 111. App.
203 (1903) ; True and True v. Woda, 104 111. App. 15 (1902) [but of. 7?. R. v.
O'Connor, supra].

In some cases it is said that the violation of an ordinance is a fact admis-
sible as having "a direct bearing upon the question of the use of due care
by the defendant." IVright v. Maiden etc. R. R., 4 Allen 283 Mass. (1862) ;
U. P. R. R. v. RassinasscH, 25 Neb. 810 (1889) ; Beck v. R. R., 25 Oregon 32
(1893). See also Sherman & Redfield, Negligence, 5th Ed., sec. 467.

If it appear that the defendant neither caused nor could have prevented
the state of things prohibited by ordinance or even statute he is not respon-
sible for the resulting harm, I Ionian v. R. R., 129 Mass. 310 (1880) ; so if
under all the circumstances the purpose of the ordinance or statute will
best be served bv not obeying its letter, Wakefield v. R. R.. xj Vt. 3'?o. p. ^^;

The defendant is not necessarily relieved from liability by compliance
with an ordinance or statute — Grand Trunk R. R. v. Ives, 144 U. S. 408
(1802"), statutory precautions at level crossing; such statutes prescribe the
minimum rather than the maximum care required — Tlwnif^son v. R. R. no
N. Y. 636 (1888) ; see also cases given in Sherman and Redfield, Negligence,
sec. 467, n. II.


ant's factory in the performance of his duties as a member of the
fire department to aid in extinguishing a tire which had broken out
in the building.

The hability of the defendant is predicted upon the fifth
section of the statute entitled "A general act relating to factories
and workshops, and the employment, safety, health and work hours
of operatives." Gen. Stat., p. 2345. The first section of this act
imposes a penalty upon any employer, engaged in manufacturing, for
discharging an employe without notice ; the second section requires
that accidents to employes in any workshop, factory, or mine, shall
be reported to the labor inspector ; the third section requires all ma-
chinery, shafting, belting, &c., in factories and workshops, when so
placed as to be dangerous to employes, to be securely guarded, when
practicable ; the fourth section prohibits the employment of minors
or women in the cleaning of machinery; the fifth section requires
that all hoistways and elevators in factories shall be protected by trap
doors or guard rails.

(The sixth to the fourteenth sections make further provisions
for the health, safety and comfort of employes.)

The fifteenth and last section imposes a penalty upon the owner,
lessee or occupant of any factory, mine, workshop, or store, for vio-
lating any of the provisions of the act.

Both the title and the body of the statute make it plain that the
sole purpose of its enactment was to provide for the protection and
comfort of employes. The duties imposed thereby are exclusively
for their benefit. Neither firemen nor any other class of persons,
except the one named in the act, come within its provisions, and for
injuries resulting from failure to perform any of those duties the
employer is answerable to his operatives alone. In an action based
upon a neglect of duty it is not enough for the plaintiff to show that
the defendant neglected to perform a duty imposed by statute for
the benefit of a third person, and that he would not have been injur-
ed if the duty had been performed, he must show that the duty was
imposed for his benefit, or was one which the defendant owed to him
for his protection. Hamilton v. Minneapolis Desk Manufacturing
Co., 78 Minn. 3.

The declaration failing to disclose that the injuries received by
the plaintiff were due to the failure of the defendant to perform any
duty which the latter owed to the former, the demurrer should be


The defendant is entitled to judgment on the demurrer.^

^Accord: Gibson v. Leonard, 143 III. 182 (1892) ; Hamilton v. Desk Co.,
78 Minn. 3 (1899). Where the language of a similar act or ordinance does
not restrict its operation to any particular class of persons, a licensee may
recover for injuries received by reason of its violation — Sheyer v. Lozuell,
134 Cal. 357 (1901), but not a trespasser — Flanagan v. Sanders, 138 Mich.
253 (1904), an intending customer attempting to avoid the crowd at a
bargain sale by using a private entrance. When the language of a statute
is general in its terms the court will not speculate as to the intention of
the Legislature in order to restrict its operation to a particular class of
beneficiary — Rosse v. R. R.. 68 Minn. 216 (1897) overruling Fitzgerald v.
R. R., 29 Minn. 336, child injured through railroad's failure to obey fencing
act. When the act is designed to protect the public or some class thereof
in some particular ri<?ht or interest or from some particular injury, no recov-
ery can be had, even by a member of the class for whose benefit it was en-
acted. unless..the hreMt,*! uiiures him in such right or interest or brings such



Supreme Court of Pennsylvania, 1879. 89 Pa. 71.

Mr. Justice Gordon delivered the opinion of the court.
In the determination of this case it is of no kind of consequence
whether the wharf of the defendant below was a public or private
one, since the plaintiff was there not as a trespasser nor by mere
license, but upon not only his own business but also that of the com-
pany. It was engaged in the transportation and sale of coal, and he
was engaged in delivering it to the company's customers, so that
whilst he was not employed directly by the defendant, yet, it profit-
ed by his employment. The company then in this manner invit-
ing and making it necessary for carters to come upon its premises,
was bound to provide ways for horses and vehicles which were
reasonably safe. It was, however, not bound to do more than this;
if such ways were reasonably safe, if an ordinarily prudent man
could drive along them without danger, the obligation of the defen-
dant was fully discharged; it was not liable for extraordinary ac-
cidents, neither was it liable for results arising from a want of judg-
ment or prudence on part of the plaintiff. Was the place where the
plaintiff's carts stood unsafe?

We turn now to the second specification of error, and we are
induced to consider it more because of our desire to relieve the case
from doubt upon the retrial than because of any error in the ruling.
That assignment embraces the defendant's objection to the intro-
duction in evidence of the city ordinance requiring the owners of
wharves, on the Schuylkill and Delaware Rivers, to put and main-
tain cap-logs upon them of a height not less than eight inches.
The plaintiff, in one of the counts of his narr., declared upon the
ordinance as raising a duty which the defendant was bound to ob-
serve, and laid the damages, resulting from the loss of his horse and
cart, as a consequence of the neglect of such duty. This count
could not have stood the test of a demurrer ; or had the Court been
asked to charge that upon this count the plaintiff could not recover,
and also that upon the remaining counts the ordinance could not be
regarded as evidence, it would have been bound so to charge.

For, let us suppose that these wharves were so constructed that,
extra the ordinance, no charge of negligence could arise, and hence
no common-law action would lie; w^ould disobedience to this regu-
lation, of itself, subject the company to such charge and action?
This question would seem almost to answ^cr itself; for if it be
affirmed, then may civil duties and civil remedies be given or
taken away by ordinances; a power as yet quite beyond the reach
of municipal legislation.

The national or state legislature may do this, for it is the su-
preme power, and as si:ch can make that immoral which was before
indifferent, and that neglect which was before prudence, but the city
of Philadelphia has no such power. Its ordinances are but police
regulations enforceable by penalties, recoverable by actions of debt
or othcrzvise as may be prescribed, but if not so enforced they come
• articular injury upon him. G orris v. Scott, L. R. 9 Ex. 125 (1874') ; HocJcing
rallev R. Co. v. PhilliM. 81 Ohio St. 453 (1910) ; Bischof y. lluwts South-
ern R Co 232 111. 446 (1008^ ; but see, r-"'>-o, Stanley/ V. Atchison. 1. & b.
;■■. R Co.. i^S Kans. 84 (i913).


to nothing. An ordinance may forbid the maintenance, by my
neighbor, of a cesspool upon his premises, and it may, by penaky,
compel him to abate it, but whether it does so or not, 1 may, if I am
damaged thereby, have my common-law action against him, but if I
am not damaged I am without remedy; in this the ordinance
neither helps nor hinders. This matter is well stated by Spencer,
J., in the case of Vandyke v. The City of Cincinnati, Disney's Rep.
532, thus : "I conclude, then, that the ordinance imposed upon
Harrison a public duty alone, which can only be enforced by the
penalty prescribed, and non-performance of which does not subject
him to a civil action at the suit of a person injured." In arriving
at this conclusion the learned justice uses the argument I have
thought proper to adopt ; that is, an ordinance cannot create a civil
diitx enforceable at common lazv. For if a City Council has power
so to do — if it has the power to create such obligation, it must also
have the power to restrict it, in other words to prescribe the sole
consequences arising therefrom, but it wull, we apprehend, be con-
ceded that a power, like the one here indicated, is wholly beyond
the province of such a body.

There are indeed cases where such ordinances have been re-
ceived in evidence in common-law actions for negligence, but they
are generally such as enter into the case itself or enforce a common-
law duty. Such are ordinances regulating the speed of railroad
trains wdien passing through towns or cities. Here the ordinance
may, and usually does, enter into the question of negligence, for the
rate of speed to be anticipated has much to do with the care to be
exercised by those crossing the tracks. So, on the other hand, those
in charge of trains are not only subject to the common-law duty of
passing through towns slowly and cautiously, but they must know
that persons depending upon the observance of the municipal regu-
lations win not take all that care which would be required in the
open country. The case in hand, however, involved no such duties.
Whether the defendant should or should not have had cap-logs upon
its wharves was a matter which addressed itself to the judgment of
those having its affairs in hand. The omission of these caps did
not, per se, involve the company in any responsibility beyond the
penalty of the ordinance. Neither could the plaintiff have placed
any dependence upon the observance of such ordinance, for he knew
that if it applied at all to the defendant's wharves it had not been
observed ; he knew that he must depend for the preservation of his
property upon his owm care and skill, and, these failing, he then
had his common-law remedy for compensation.

Judgment reversed, and a new venire ordered. ^

^Accord: Chambers v. Ohio Life Ins. & T. Co., i Disney (Ohio) 327
(1857) ; Vandyke v. Cincinnati & Harbeson, i Disney 532 (1857) ; Heeney v,
S Prague, 11 R. I. 456 (1878). The two latter cases could have been so
decided on the point that the ordinance in question imposed a duty for the
public benefit exclusively in that it transferred to the lot owner the cost of
performing an admitted municipal duty, cf. Rochester v. Campbell,^ 123 N. Y.
405 CiSoo). In Pennsylvania an ordinance if valid may be given in evidence
but its violation is not alone a sufficient prima facie case — Lederman v. P. R.


Supreme Judicial Court of Massachusetts, 1883. 135 Mass. 116.

Tort, against the owners and the occupants of a building in
Boston, for personal injuries sustained by the plauuilt therein. Trial
in this court, without a jur}', before Field, J., who found for the de-

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 51 of 124)