Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

. (page 119 of 123)
Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 119 of 123)
Font size
QR-code for this ebook


ance.
— Definition of a nuisance.

Cited in Catlin v. Patterson, 10 N. Y. S. R. 724; Morison v. New York EleT.
R. Co. 74 Hun, 398, 26 N. Y. Supp. 641,— holding anything done to hurt or
annoyance of lands, tenements or hereditaments of another is a nuisance.
Keeping or use of explosives or inflammables as nuisance.

Cited in McDonough v. Roat, 8 Kulp, 433, holding keeping of dynamite in
store is a nuisance or otherwise according to the facts; Reilly v. Erie R. Co.
72 App. Div. 476, 76 N. Y. Supp. 620, holding a dynamite magazine may con-
stitute nuisance so as to create liability without negligence; Lounsbury v.
Foss, 80 Hun, 296, 30 N. Y. Supp. 89, holding same as to a dynamite manu-
factory; Flynn v. Butler, 189 Mass. 377, 76 N. E. 730, holding powder house
will constitute a nuisance where there is constant menace to neighborhood;
Rudder v. Koopman, 116 Ala. 332, 37 L.R.A. 489, 22 So. 601, holding storage
of gunpowder and dynamite in thickly settled portion of town was a nuisance;
Wilson V. Phoenix Powder Mfg. Co. 40 W. Va. 413, 62 A. S. R. 890, 21 S. E.
1036, holding maintenance of powder mill in highway traveled by thousands,
was nuisance, regardless of care; Laflin & R. Powder Co. v. Tearney, 131 111.
322, 19 A. S. R. 34, 7 L.R.A. 262, 23 N. E. 389, holding averments of declara^
tion brought a powder magazine within definition of a nuisance; O'Hara v.
Nelson, 71 N. J. Eq. 161, 63 Atl. 836, holding question as to gasolene in a
garage is dependent on circumstances of each case; Lee v. Vacuum Oil Co. 64
Hun, 166, 7 N. Y. Supp. 426, holding facts in relation to an oil pipe in street
did not sustain charge of being a nuisance; Van Fleet v. New York C. & H. R.
R. Co. 27 N. Y. S. R. 76, 7 N. Y. Supp. 636, holding frame shanty filled with
oil, etc., and located close to a dwelling, may become nuisance; Spier v. Brook-
lyn, 45 N. Y. S. R. 261, holding city created a nuisance by licensing exhibition
of fireworks in public street; Morgan v. Bowes, 42 N. Y. S. R. 791, 17 N. Y.
Supp. 22, holding blasting with explosives so powerful as to injure neighbors
by atmospheric concussion was a nuisance.

Cited in reference notes in 36 A. R. 508, on keeping a powder magazine as a
nuisance; 31 A. S. R. 438, on keeping dangerous explosives as nuisance.

Cited in notes in 41 A. D. 747, on keeping gunpowder in large quantities near
dwelling house as a nuisance; 107 A. S. R. 243, on manufacture or storage ol



Digitized by



Google



1175 NOTES ON AMERICAN REPORTS. [654

explosive materials as public nuisance; 29 L.R^. 718, on negligence in manu-
facture and storage of gunpowder, nitroglycerine, dynamite, and other explosives;
16 L.R.A.(N.S.) 693, on storage of explosives as a nuisance.

Distinguished in Booth v. Rome, W. & O. T. R. Co. 140 N. Y. 267, 37 A. S.
R. 662, 24 L.R.A. 106, 35 N. E. 692, holding temporary use of explosives in
blasting for needed improvement was not a nuisance; Ft. Worth & D. C. R.
Co. V. Beauchamp, 96 Tex. 496, 93 A. S. R. 864, 58 L.R.A. 716, 68 S. W. 502,
holding mere fact of transportation of explosives by carrier does not establish
a nuisance; Piehl v. Albany R. Co. 30 App. Div. 166, 51 N. Y. Supp. 755,
holding operation of engine and flywheel in power house was not a nuisance
in action for explosion of wheel.

Explained in Kinney v. Koopman, 116 Ala. 310, 67 A. S. R. 119, 37 L.R.A.
497, 22 So. 693, holding storage of gunpowder or dynamite in thickly settled
portion of town was not a nuisance per se.

— In absence of municipal regulation.

Cited in Chicago, W. & V. Coal Co. v. Glass, 34 111. App. 364, holding re-
covery for injuries not dependent on fact of prohibition by-law, or ordinance.
Nuisance as a question of fact.

Cited in Morison v. New York Elev. R. Co. 74 Hun, 398, 26 N. Y. Supp.
641, holding question was properly left to jury.

— As to nuisances in relation to explosives.

Cited in Reilly v. Erie R. Co. 72 App. Div. 476, 76 N. Y. Supp. 620, holding
question as to a dynamite magazine within 1000 feet of houses in outskirts
of village was a question for jury on the facts; Prussak v. Hutton, 30 App.
Div. 66, 61 N. Y. Supp. 761, holding same in case of a powder magazine
within limits of city and about 300 or 400 feet away; Melker v. New York,
190 N. Y. 481, 16 L.R.A.(N.S.) 621, 83 N. E. 565, 13 A. & E. Ann. Cas. 544,
holding same in case of firing, in remote place, of a cannon loaded with grape
shot; Kleebauer v. Western Fuse Explosives Co. 138 Cal. 497, 94 A. S. R. 62,
60 L.R.A. 377, 71 Pac. 617, holding question as to powder magazines should
be left to jury on facts of each case.
Explosion of powder magazine as evidence that it was dangerous.

Cited in Laflin & R. Powder Co. v. Tearney, 131 111. 322, 19 A. S. R. 34,
7 L.R.A. 262, 23 N. E. 389, holding it shows that it was dangerous.
liiability to civil suit for injuries from nuisances.

Cited in Cameron v. Kenyon-Connell Commercial Co. 22 Mont. 312, 74 A. S.
R. 602, 44 L.R.A. 608, 56 Pac. 358, on right to maintain suit for injuries
against corporation maintaining nuisance; Southern R. Co. v. Adkins, 133 Ky.
219, 117 S. W. 321, holding that railroad is liable for injury caused by ex-
plosion of car of dynamite, if they failed to exercise care to prevent it.

Cited in notes in 42 A. S. R. 541, on liability of railroad for storing ex-
plosive; 67 A. S. R. 136, 137, on liability for keeping explosives.
Municipal power over nuisances.

Cited in note in 38 L.R.A. 309, on municipal power over nuisances as to
electricity, steam, and explosives.
Negligence as element in nuisance.

Cited in Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18, 9 L.R.A. 711, 25
N. E. 246, holding negligence need not be proved in action for use of property,
producing destructive vapors; Frost v. Berkeley Phosphate Co. 42 S. C. 402,



Digitized by



Google



36 AOT. HEF.] NOTES ON AMERICAN REPORTS. - 1176

46 A. S. R. 736, 26 L.R.A. 693, 20 S. E. 280, holding proof of care no defense
to like action; Reilly v. Erie R. Co. 72 App. Div. 476, 76 N. Y. Snpp. 620,
holding there may be liability as respects a dynamite magazine regardless of
negligence; Lounsbury v. Foss, 80 Hun, 296, 30 N. Y. Supp. 89, holding same as
to a dynamite manufactory; Laflin & R. Powder Co. v. Teamey, 131 111. 322,
19 A. S. R. 34, 7 L.R.A. 262, 23 N. E. 389, holding liability for actual
injuries from keeping of gunpowder not dependent on negligence; Weston Paper
Co. V. Pope, 165 Ind. 394, 56 L.R.A. 899, holding absence of negligence or
malice does not relieve from liability from depositing refuse in stream; Pitta-
burgh, C. & St. L. R. Co. V. Hood, 36 C. C. A. 423, 94 Fed. 618, holding no ques-
tion of negligence arises in actions for injuries against railroad using street
without authority.
Torts not dependent on negligenc^e.

Cited in Van Norden v. Robinson, 46 Hun, 567, holding navigation of vessel
with uninspected boiler dispensed with necessity of proving negligence;
Mathews v. St. Louis & S. F. R. Co. 121 Mo. 298, 26 L.R.A. 161, 24 S. W. 591,
holding legislature could make railroads liable for escape of fire from locomo-
tive regardless of question of care; Colton v. Onderdonk, 69 Cal. 155, 58 A.
R. 556, 10 Pac. 395, holding exercise of care does not permit injury of neighbors
by blasting on a city lot; Klepsch v. Donald, 4 Wash. 436, 31 A. S. R. 936»
30 Pac. 991, holding liability for blasting, not claimed to be unlawful, is de-
pendent on proof of negligence; Albee v. Chappaqua Shoe Mfg. Co. 62 Hun.
223, 16 N. Y. Supp. 687, holding liability for blowing powerful whistle near
highway not affected by negligence of injured party.
Direct injuries from wrongful acts.

Cited in Booth v. Rome, W. & O. Terminal R. Co. 44 N. Y. S. R. 9, 17
N. Y. Supp. 336, holding injuries from repeated concussions from railroad
blasting were direct.
Rights of others as a limitation on nse of property.

Cited in Rafter v. Tagliabue, 29 Abb. N. C. 1, 21 N. Y. Supp. 107, holding
lawful acts must not be done in an unlawful manner; Kerbaugh v. Caldwell,
80 C. C. A. 470, 151 Fed. 194, 10 A. & E. Ann. Cas. 453; Catlin v. Patterson,
10 X. Y. S. R. 724; Lee v. Vacuum Oil Co. 64 Hun, 156, 7 N. Y. Supp. 426,—
linldincr nuisance, to injury of neighbors, cannot be maintained even in pur-
suit of a lawful trade; Albee v. Chappaqua Shoe Mfg. Co. 62 Hun, 223, 16 N.
Y. Supp. 687, holding acts, detracting from safety of travelers, cannot be done
on own premises; Eetcham v. Cohn, 2 Misc. 427, 22 N. Y. Supp. 181, holding
enjoyment of right to excavate on own land is limited by rights of others;
Engel V. Eureka Club, 59 Hun, 593, 14 N. Y. Supp. 184, holding owner of dan-
gerous building cannot escape liability by contracting for removal; Taylor v.
Metropolitan Elev. R. Co. 8 Jones & S. 311, on superiority of rights of others
as a basis of maxim "sic utere tuo."

Cited in reference note in 51 A. D. 286, on liability for injuries by acts done
on one*8 own land.

Cited in notes in 51 A. D. 283, on liability for damages to others from acts
done on one's own land; 1 E. R. C. 272, on liability few: injury due to escape
of anything likely to do harm.
— Blasting on own land.

Cited in Blackwell v. Lynchburg & D. R. Co. Ill N. C. 151, 32 A. S. R. 786,
17 L.R.A. 729, 16 S. E. 12, holding an abutter can recover of railroad for



Digitized by



Google



1177 NOTES ON AMERICAN REPORTS. £654-669

negligent use of explosives in blasting; Sullivan v. Dunham, 161 N. Y. 290,
76 A. S. R. 274, 47 L.R.A. 715, 56 N. E. 923, holding a traveler on highway
could recover for injuries from careful blasting on abutting land.

36 AM. REP. 650, HOY v. HOLT, 01 PA. 88.

liiability to replace destroyed property under contract to keep in repair.

Cited in Gettysburg Electric R. Co. v. Electric Light, Heat & Power Co. 200
Pa. 372, 49 Atl. 952, holding lessee, under covenant to keep leased premises
in good repair and restore them to lessor in good condition, bound to rebuild
in case of destruction by fire; Phillips v. Epp, 9 Lane. L. Rev. 197, 6 Kulp,
406; Lee's Estate, 18 Phila. 2, 42 Phila. Leg. Int. 488, 17 W. N. C. 110,— on
the same point; Priest v. Foster, 69 Vt. 417, 38 Atl. 78, holding one contract-
ing to keep property in repair and to return it in as good condition as he re-
ceives it, liable for its value where destroyed by fire or other accident; Moore
V. Sun Printing & Pub. Asso. 41 C. C. A. 500, 101 Fed. 591, holding charterer
of vessel under contract to return it in good condition liable for its loss though
occurring without fault on his part; Meriwether v. Lowndes County, 89 Ala.
362, 7 So. 198, holding that covenant to keep bridge in repair and in safe con-
xiition includes liability to rebuild if destroyed by unusual and unprecedented
flood; Smith American Organ Co. v. Abbott, 1 Pa. Dist. R. 174, 11 Pa. Co. Ct.
319, holding that where lessee covenants to insure and fails to do so he is
liable for loss by fire; Jenkins v. Stone, 14 Montg. Co. L. Rep. 27, holding
that under covenant of tenant to repair fences, material to be taken from trees
on premises, tenant was not relieved from paying rent because of burning of
trees; Link v. Hathway, 143 Mo. App. 502, 127 S. W. 913, to point that where
bailee agrees to keep premises in repair he is liable for damage to property
by fire.

Cited in reference notes in 40 A. R. 814, on lessee's covenant for restoration
as including loss by fire; 2 A. S. R. 368, on liability of lessee for restoration
of premises destroyed by fire; 61 A. S. R. 666, on tenant's duty to rebuild on
destruction of leased premises.

Cited in notes in 95 A. D. 121, on tenant's covenants to repair; 61 A. S. R.
567, on tenant's duty to rebuild on destruction of leased premises; 22 L.R.A.
615, on liability of tenant to rebuild on destruction of leased building; 64
L.R.A. 658, on tenant's duty to leave premises in good condition under express
covenants as to fire or unavoidable accident; 124 A. S. R. 707, on meaning of
word "repair" as distinguished from or synonymous with the word "rebuild"
or "reconstruct."

Distinguished in Van Wormer v. Crane, 51 Mich. 363, 47 A. R. 582, 16 N. W.
686, holding lessee not liable for loss by accidental fire under lease to keep in
repair and return in good condition, excepting damage by the elements; Dixon
V. Breon, 22 Pa. Super. Ct. 340, holding that where under contract to cut and
manufacture certain lumber and deliver to another, the timber is accidentally
destroyed by fire after being cut but before made into liunber, vendot* is released
from his contract; Sampson v. Grogan, 21 R. I. 174, 44 L.R.A. 711, 42 Atl.
712, holding life tenant not bound to rebuild house accidentaly destroyed by
fire, though held under devise providing that he shall keep it in repair.
Excnse for nonperformance.

Cited in Mitchell v. Hancock County (Mitchell v. Weston), 91 Miss. 414,



Digitized by



Google



36 AM. REP.] NOTES ON AMERICAN REPORTS. 117&

124 A. S. R. 706, 15 L.R.A.(N.S.) 833, 45 So. 571, holding that act of God
will not excuse nonperformance of duty created by contract.

36 AM. REP. 662, MANSFI£IiD COAIj A COKJE] CO. t. McENERY, 91

PA. 185.
Measure of damages for death by wroneful act.

Cited in McGowan v. St. Louis Ore & Steel Co. 109 Mo. 518, 19 S. W. 199;
Carlson v. Oregon Short Line & U. N. R. Co. 21 Or. 450, 28 Pac. 497, — holding
that measure of damages for death by wrongful act is the pecuniary loss sus-
tained without any addition for physical pain of the injured or mental suiTering
of survivors; Missouri, K. & T. R. Co. v. McLaughlin, 73 Kan. 248, 84 Pac. 989, on
same point; St. Louis, I. M. & S. R. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571;
McHugh V. Schlosser, 169 Pa. 480, 39 A. S. R. 699, 23 L.R.A. 574, 28 Atl. 291,
34 W. N. C. 33, 24 Pittsb. L. J. N. S. 285,— holding that in fixing damages for
death by wrongful act, the age of deceased, his habits and capacity for work
and his expenditures may be considered; O'Reilly v. Monongehela Street R.
Co. 17 Pa. Super. Ct. 626, on same point; Palmer v. Philadelphia, B. & W. R.
Co. 218 Pa. 114, 66 Atl. 1127, holding that exemplary damages cannot be re-
covered by surviving parties for injuries causing death; Atlanta & W. P. R. Co.
V. Newton, 85 Ga. 617, 11 S. E. 776, holding evidence of what deceased might
have earned in occupations other than that in which he was always engaged in-
admissible on measure of damages.

Cited in notes in 48 A. D. 639, on damages for death of relative; 1 A, S. R.
632; 12 A. S. R. 375, 378, 380, — on measure of damages for causing death;
8 £. R. C. 426, on measure of damages for death of person negligently killed.
— Death of father.

Cited in St. Louis, I. M. & S. R. Co. v. Maddry, 57 Ark. 308, 21 S. W. 472,
holding that loss to minor child of the training by his father is proper element in
fixing damages for death by wrongful act; McCabe v. Narragansett Electric
Lighting Co. 27 R. I. 272, 81 Atl. 667, holding thai in action for death by
wrongful act, loss of parental care to infant cannot be considered as an ele-
ment of damages; Duzan v. Myers, 30 Ind. App. 227, 96 A. S. R. 341, 65 N. E.
1046, holding invalid adult daughter entitled to part of fund recovered for
death of father by wrongful act.
Contributory negligence and assumption of risk.

Cited in Durst v. Carnegie Steel Co. 173 Pa. 162, 33 Atl. 1102, on nonliability of
master to workmen for injury from danger arising during, and caused by the
progress of the work.

Cited in reference note in 13 A. S. R. 94, giving instances of contributory
negligence.

Cited in notes in 55 A. D. 672, on knowledge of or reason to apprehend danger
as essential to contributory negligence which will defeat recovery for injury;
92 A. D. 219, on duty of employer to furnish safe premises and conditions in and
under which to work; 59 A. R. 75, on roaster's duty to furnish safe appliances;
59 A. D. 739, on effect of contributory negligence on liability of owner of defective
bridge; 49 L.R.A. 54, on contributory negligence in respect to risks assumed by
servant enteriifg or remaining in employment; 54 L.R.A. 66, on master's duty to
see that unintelligent instrumentalities of the work are reasonably safe; 37
L. ed. U. S. 729, on master's duty to furnish suitable and safe machinery and
appliances.



Digitized by



Google



117« NOTES ON AMERICAN REPORTS. [659-662

~ Continniiis: at work under known dangerous conditions.

Cited in Wannamaicer v. Burke, 111 Pa. 423, 2 Atl. 600, 17 W. N. C. 226, 43
Phila. Leg. Int. 331, holding that employee continuing to work in room known to
be in unsafe condition, assumes the risk of injury therefrom; Diehl v. Lehigh
Iron Co. 140 Pa. 487, 21 Atl. 430, 27 W. N. C. 652, 48 Phila. Leg. Int. 321,
holding that servant voluntarily undertaking dangerous employment with knowl-
edge of the danger assumes the risk of injury; Patnode v. Harter, 20 Nev.
303, 21 Pac. 679; Dooner v. Delaware & H. Canal Co. 164 Pa. 17, 30 Atl. 269,—
holding that employee using defective machinery with knowledge of such defect
assumes the risk of injury therefrom; New York, L. E: & W. R. Co. v.
Lyons, 119 Pa. 324, 13 Atl. 205, 21 W. N. C. 277, 45 Phila. Leg. Int. 275, 18
Pittsb. L. J. N. S. 515, holding that switchman with knowledge of defective
condition of step on engine, is guilty of contributory negligence in attempting
to step upon such engine while in motion; Wilkinson v. H. W. Johns Mfg. Co.
198 Pa. 634, 48 Atl. 810, holding plaintiff guilty of contributory negligence as
matter of law where injury was caused by instrumentality used by employee a
long time prior thereto without any complaint as to its being defective; Baldwin
V. Urner, 18 Montg. Co. L. Rep. 21, holding master not liable for injury to
servant where latter voluntarily assumes danger manifest to him.

Cited in notes in 41 L.R.A. 41, on effect of actual knowledge on employer's lia-
bility to injured servant; 47 L.R.A. 185, on fact that servant complained of dan-
gerous condition as affecting applicability of maxim, volenti non fit injuria.

Distinguished in Pennsylvania R. Co. v. Zink, 126 Pa. 288, 17 Atl. 614,
holding that where defective condition of track is not palpably evident, a
brakeman is not guilty of contributory negligence as a matter of law by con-
tinuing his work; Hammer 'v. Pressed Steel Car Co. 204 Pa. 594, 54 Atl. 355,
holding that where danger is not plainly evident, employee is not guilty of con-
tributory negligence as a matter of law, from continuing his work as usual.
Liability of master for negligence of coemployee.

Cited in Walton v. Bryn Mawr Hotel Co. 160 Pa. 3, 28 Atl. 438, holding that
one erecting a structure is not liable for injury to workman thereon if he has
exercised reasonable care in employing competent persons to do the work;
Anderson v. Hays Mfg. Co. 207 Pa. 106, 63 L.R.A. 540, 56 Atl. 345, holding
that test as to liability for work done by employees is whether or not the master
exercised reasonable care in employing them; Snodgrass v. Carnegie Steel Co.
173 Pa. 228, 33 Atl. 1104, 37 W. N. C. 544, 27 Pittsb. L. J. N. S. 37, holding that
burden of showing want of care in the selection of employees is upon him who
alleges it; McGuire v. Lehigh Calley R. Co. 216 Pa. 618, 64 Atl. 825, on
same point; Philadelphia City Pass. R. Co. v. Henrice, 92 Pa. 431, 37 A. R. 699,
on admissibility of evidence that driver was incompetent to attend to his duties
at time of an accident.

Cited in note in 54 L.R.A. 165, on master's liability where his own negligence
intervenes as a proximate cause between a delinquent coservant's negligence and
the injury.

Distinguished in Philadelphia & R. R. Co. v. Anderson, 94 Pa. 351, 39 A. R.
787, on difference in care required as to passengers on railroad from that as to
employees.
friability for negligence of Independent contractor.

Cited in Galatia Coal Co. v. Harris, 116 III. App. 70, holding employer not
liable for injury resulting from negligence of independent contractor.



Digitized by



Google



36 AM. REP.] NOTES ON AMERICAN REPORTS. 1180

Cited in notes in 76 A. S. R. 386, 387, 389, on nonliability for negligence and
other torts of independent contractors ; 76 A. S. R. 422, on liability for negligence
of independent contractors in cases concerning bridges.
Who is independent contractor.

Cited in Hanna v. Gresh, 16 Montg. Co. L. Rep. 182, holding that fact that
plumbers were paid ordinary wages for work done instead of stipulated sum for
whole job did not take away character of independent contractor.
Negligence when question for Jury.

Cited in Philadelphia & R. R. Co. v. Schertle, 97 Pa. 450, holding that where
there is no evidence of negligence, the question should not be submitted to the
jury.
Burden of proof of negligence.

Cited in Mensch v. Pennsylvania R. Co. 150 Pa. 598, 17 L.R.A. 450, 26 Atl. 31,
holding that employee suing for damages for personal injury must prove the fact
of negligence which establishes liability.
Assignability of duty of Inspection.

Cited in note in 41 L.R.A. 111, on assignability of master's duty of inspection.

86 AM. REP. 668, POTTER ▼. WARNE:R, 91 PA. S62.
Duty and liability of physician for maltreatment of patient.

Cited in Force v. Gregory, 63 Conn. 167, 38 A. 8. R. 371, 22 L.R.A. 343, 27
Atl. 1116, holding that physicians are bound to exercise reasonable and ordinary
care, skill and diligence in the treatment of their patients; McKee v. Allen.
94 III. App. 147 J Wohlert v. Seibert, 23 Pa. Super. Ct. 213,— holding that implied
contract of physician with his patient is not to cure, but to treat his case with
reasonable skill and diligence; Carpenter v. McDavitt, 63 Mo. App. 393, on
liability of physician as to treatment of his patient; Giberson v. Klnard, 25
Lane. L. Rev. 380, holding that no presumption of negligence of physician
arises because he fails to effect cure.

Cited in notes in 48 A. D. 481, 482, 484, on civil liability of physicians and
surgeons for negligence; 93 A. 8. R. 665, on liability of physicians and surgeons
for mismanagement by those in charge of patient; 2 L.R.A. 588, on care and skill
required of physicians and surgeons in treatment of patient; 37 L.R.A. 833,
on liability of physician or surgeon for acts of others.
— Results contributed to by patient's disregard of instrnctions.

Cited in Young v. Mason, 8 Ind. App. 264, 35 N. E. 521, holding that no recov-
ery can bo had for injury resulting from negligence of physician, where ibe
conduct of the patient in disregarding instructions contributed to the injury;
Jones V. Angel 1, 95 Ind. 376, on same point.

Cited in reference note in 8 A. S. R. 796, on effect of contribution by patient to
injury on recovery of damages for malpractice.

Cited in notes in 17 L.R.A.(N.S.) 1246, on patient's own negligence or failure
to follow instructions as affecting liability of physician or surgeon for mal-
practice ; 49 L.R. A. 828, on effect of disobeying orders of phjrsician on remedy of
injured person against one who injured him.

Distinguished in Brown v. Marshall, 47 Mich. 676, 41 A. R. 728, 11 N. W.
.392, holding that druggist negligently selling one medicine for another is liable
for injuries resulting therefrom, though negligent treatment following ita taking
may have contributed to the injury.



Digitized



by Google



1181 NOTES ON AMERICAN REPORTS. £662-671

'Comparative negligence.

Cited in reference note in 64 A. D. 675, on comparing contributory negligence
and negligence.

Cited in note in 55 A. D. 671, on rule as to comparative negligence.

86 AM. REP. 671, POLL'S APPEAL, 01 PA. 434.

Specific performance of contracts relating to stocks or personalty.

Cited in Eckstein v. Downing, 64 N. H. 248, 10 A. S. R. 404, 9 Atl. 626, denying
specific performance of contract for exchange of shares of stock for other property;
Spotts V. Eisen Hauer, 31 Pa. Super. Ct. 89, holding that equity will not decree
specific performance of contract for purchase of a chose in action where perform-
ance would result in injustice; Rigg v. Heading & S. W. Street R. Co. 191 Pa.
298, 43 Atl. 212, holding that equity will not decree specific performance
of contract for sale of stock in the absence of circumstances making remedy
at law inadequate; Paxton Fire Co. v. McJCormick, 27 Pa. Co. Ct. 553; Phila-
delphia & R. R. Co. V. Stichter, 11 W. N. C. 325, — on general rule that equity will
not decree specific performance of contract relating to chattels; Cunningham's
Appeal, 108 Pa. 546, 16 W. N. C. 430, 42 Phila. Leg. Int. 103; DeLaCuesta v.
Insurance Co. of N. A. 136 Pa. 62, 9 L.R.A. 631, 20 Atl. 508, 26 W. N. C.



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 119 of 123)