Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 1) online

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rightly held, in an action for pulling down the plaintiff's
fence, that the expense of keeping intruders out of the plain-
tiff's unfenced enclosure was "too remote." ^^^

§ 215.'* For obstruction of ways.

Defendant wrongfully closes a wagon road used by plain-
tiff in feeding his cattle; his natural course is not to leave the
cattle to starve, but to feed them by a more circuitous way; ^^^
and where the road was used by the plaintiff to get in his crops,
he must use the most practicable way left.^^^ If the defendant
opens another way plaintiff must use it.^^^

§ 216.'' Actions of replevin.

The same general principle applies in actions of replevin.
Thus in replevin for ice, where the defendant is liable on out-
standing contracts for ice, which he is obliged to fulfil, he
cannot recover any extraordinary damages he has had to pay
for a breach of these contracts, for "it would be easy for him
to replace the ice taken, by ice to be purchased, for which
he would be obliged to pay only the fair value, which will be
precisely what he will receive." ^^^

" For former § 215, see § 2266. * For former § 216, see § 226c.

'1° Massachusetts: Loker v. Damon, ^'^ Krueger v. Le Blanc, 62 Mich. 70,

17 Pick. 284. 28 N. W. 757.

Pennsylvania: Smith v. Johnson, 76 '" Texas & P. Ry. v. Newton, (Tex.

Pa. 191. Civ. App.), 30 S. W. 475.

Texas: Gulf, C. & S. F. Ry. v. Mc- "« Ohio & M. Ry. v. McGhee, 47 111.

Murrough, 41 Tex. Civ. App. 216, 91 App. 348.

S. W. 320. "5 Fitzpatrick v. Boston & M. R. R.,

Vermont: Watkins v. Rist, 67 Vt. 284, 84 Me. 33, 24 Atl. 432.

31 Atl. 418. "« Washington Ice Co. v. Webster, 62

'" Berry v. San Francisco & N. P. R. Me. 341, 16 Am. Rep. 462; ace, Bowen

R., 50 Cal. 435. v. Harris, 146 N. C. 385, 59 S. E. 1044.


§ 217/' Statutory damages — Eminent domain.

The general rule applies as well where the damages are
statutory. So in cases of injuries inflicted through the exer-
cise of the power of eminent domain, it is to be expected
that the owner will use reasonable and proper precautions to
prevent or diminish the injury, and expenses incurred in this
way are a part of his measure of damages. ^'^ And where a
city is liable for damages through changing the grade of the
street, it has been held that the measure is the expense of
changing the grade of the house and lot to conform."^

Where part of the plaintiff's sea wall was appropriated, but
the wall still served its former use, it was held that the measure
of damages was what would make the plaintiff whole for the
occupation of the wall, and not what the wall cost, for this
might be more or less than the actual damages. ^^^ On the
other hand, where the defendant cut through another rail-
road's embankment, it was held that the measure of damages
was the cost of building a bridge and keeping it in repair.'-"
So, in estimating damages caused by laying a railroad illegally
in a highway without making compensation, it has been held
that the measure of damages may be the cost of removing
the obstruction and restoring the highway to its former con-
dition.'-' And it has been said that where the damage is to
an easement of access, the measure of damages may be the
expense of making the access as good as it had been before. '^^

II. — Limitations

§ 218.'' Limits of the rule.

We have seen that the plaintiff is always limited in his recov-
ery by the boundary of ordinary care and of reasonable ex-
pense. So there are many other limitations, which are really

" For former § 217, see § 22&d. * For former § 218, see § 226j.

"' Maryland: Gregg v. The Mayor, >'» Gear v. C. C. & D. R. R., 39 la.

56 Md. 256. 23.

Missouri: In re Wyandotte & C. Sts. '^o Chicago & A. R. R. v. Springfield

23 S. W. 127. & N. W. R. R., 67 III. 142.

"8 McCarthy v. St. Paul, 22 Minn. i" Lawrence R. R. v. Mahoning

527. But see contra, Fort Worth v. County, 35 Oh. St. 1.

Howard, 3 Tex. Civ. App. 537, 22 S. W. '-^ In re N. Y., W. S. & B. Ry., 29

1059. Hun, 646.


mvolved in the rule itself, but the statement of which con-
duces to a clearer apprehension of the reason upon which it is
founded. Thus it has been decided that it does not relate
to the performance of the primary obligations of the con-
tract and the party whose duty it is to perform, cannot, while
the contract is in force, be heard to say that the plaintiff
might have performed for him.^-'' And so the mere fact
that the plaintiff might by some acts of his have avoided the
consequences, will not prevent the plaintiff's recovery. There
must be a want of ordinary diligence. Thus in Clark v. M\\-
lerj^^"* an action for failure on the part of a town supervisor
to present to supervisors of a county a reassessment of dam-
ages in the plaintiff's favor, the plaintiff was allowed to recover
the amount of the reassessment, and he was not limited in
his recovery of interest to the period when he might have
had his claim presented to another board of supervisors (per-
haps because what the result would have been was not certain).
And in an action against a register of deeds for a false return
in omitting a mortgage, it was held that plaintiff was not
bound to tell the defendant of the mortgage when he heard
of it, so that the defendant could buy it up before fore-
closure, the court saying: ''It is undoubtedly true that the
plaintiff was under obligation to make reasonable exertions to
prevent the increase of damages likely to fall upon himself,
and thus incidentally to protect the defendant; but it was not
his duty to go one step further," or "to do an act which will
not affect his own damages, though it would be of service to
the wrongdoer." ^-^ And in a similar case the plaintiff brought
an action for damages for failure to get the certificate of the
manufactm^er in the United States of certain boxes sent to
Mexico, by reason of which upon their return goods in the
boxes were seized as dutiable. The defendant claimed that
the plaintiff should have made further efforts before the
Treasury Department to get the boxes through; but it was

"3 Indiana: Louisville, N. A. & C. Oregon: Haas v. Dudley, 30 Ore. 355,

Ry. V. Sumner, 106 Ind. 55, 55 Am. 48 Pac. 168.

Rep. 719; Same v. Moore, 106 Ind. Wisconsin: Pewaukee M. Co. v.

600. Howitt, 86 Wis. 270, 56 N. W. 784.

Minnesota: Cargill v. Thompson, 57 '2" 54 N. Y. 528.

Minn. 534, 59 N. W. 638. '" Van Schaick v. Sigel, 9 Daly, 383.


held that while he should have made reasonable efforts, he was
not required to institute or prosecute proceedings of doubtful
result in the Treasury Department. ^-^

The plaintiff cannot be called upon to accept a substitute
of an entirely different sort. Thus in case of breach of covenant
for quiet enjoyment, where the lessee is prevented from ob-
taining possession of a store, in which to carry on his business,
he will, as a prudent man procure a new store; but he is not
bound to remove to a remote part of the city, and thus lose
to some extent the good will of his business, which had been
carried on in the vicinity of the premises leased; nor would
he be required to take another store not reasonably well adapted
to his business.^" Nor can he be called upon to incur personal
danger, as, in a case of personal injury, to submit to a danger-
ous and doubtful surgical operation. ^-^

In some cases of injury to property, where the plaintiff has
the right to regard the injury as a total one, he cannot be
called upon to reduce the damages by salvage of the fragments
of the property which remain; as in actions of trover he is not
obliged to take back the property, even though it is tendered
to him in good condition. ^-^ So in an action against a railroad
for wrongfully killing cattle, plaintiff cannot be called upon
to take and dispose of the dead and mangled bodies of the
cattle so as to lessen the damage. ^^° Where defendant wrong-
fully ejects plaintiff from his premises, scattering about his
personal property, this constitutes a conversion of the per-
sonal property, and plaintiff cannot be called upon to collect
and take care of such portions of his personal property as he
may find.^^^ And where defendant sank plaintiff's vessel so
that she was a total wreck plaintiff was not obliged to reduce

'2^ Pierpont Mfg. Co. v. Goodman shown, as bearing on the actual amount

Produce Co. (Tex. Civ. App.), 60 S. W. of damages caused by the injury. Jo-

347. scph Schlitz Brewing Co. v. Duncan, 6

•2' Boposky V. Munkwitz, 68 Wis. Kan. App. 178, 51 Pac. 310.
322. '29 Ante, § 53.

12S Kehoe v. Allentown & L. V. Trac- ^^o Rockford, R. 1. & S. L. R. R. '

tion Co., 187 Pa. 474. 41 Atl. 310; Mat- Lynch, 67 111. 149.
tis V. Philadelphia Traction Co., 6 Pa. i'' United States: Eisele v. Oddie, 128

Dist. 94, 19 Pa. Co. Ct. Rep. 65. The Fed. 941.

fact that an injury may be cured by New York: Eten v. Luyster, 60 N. Y.

an operation may, however, always be 253.


damages by raising the wreck. ^^^ gome of the more usual
limitations will now be considered.

§ 219." Plaintiff not called upon to take unreasonable steps
to avoid loss.

The defendant cannot complain that the plaintiff did not
go to unreasonable expense or take steps not reasonably neces-
sary to avoid the loss.^^^ So in an action for a personal injury
which had seemed to be a slight one, defendant claimed that
because plaintiff did not at once call in a physician he could
not recover for the consequences of his injury; but the court
held that the plaintiff is called upon to take only such steps as
appear to be reasonable and necessary to avoid the loss. ^^^ And
so it has been held in Maryland that for breach of contract to
furnish freight and employment to plaintiff's boat, it was not
the duty of the plaintiff to get rid of expense by keeping his
boat and horses unemployed and dismissing his hands. ^^^

§ 220.^ Rule does not require impossibilities.

In an action against a carrier for non-delivery of corn, where
the plaintiff claimed to recover for a sub-contract, and defend-
ant urged that the plaintiff might have bought the corn in
the market to fill the contract, and that not having done so

" For former § 219, see § 220. * For former § 220, see § 217.

'" O'Reilly v. New Brunswick, A. & "■• Illinois: Galesburg v. Rahn, 45 111.

N. Y. S. B. Co., 26 N. Y. Misc. 195, 55 App. 351.
N. Y. Supp. 1133. Michigan: Moore v. Kalamazoo, 109

"' Kentucky: Illinois Cent. R. R. v. Mich. 176, 66 N. W. 1089.
Poston, 125 S. W. 253 (woman left Missouri: Wise v. Wabash R. R., 135

at flag station not obliged to re- Mo. App. 230, 115 S. W. 452; Webb y.

main during night for shelter in house Metropolitan St. Ry., 89 Mo. App. 604.
near station of which the only oc- Pennsylvania: Vallo v. U. S. E.xp.

cupant was a strange man); Madison- Co., 147 Pa. 404, 23 Atl. 594, 30 Am.

ville, H. & E. R. R. v. Cates, 138 Ky. St. Rep. 741, 14 L. R. A. 743.
257, 127 S. W. 988 (not called on Washington: Kuhnis v. Lewis R. B. &

to dig ditches at great expense); L. Co., 51 Wash. 196, 98 Pac. 655.
T. J. Moss Tie Co. v. Phelps, 137 "^ Benson v. Atwood, 13 Md. 20;

S. W. 516 (not called on to sell goods Borden Mining Co. v. Barry, 17 Md.

left on hand to man of doubtful 419. But this must not be taken as an

credit). invariable rule of law, as circumstances

Texas: International & G. N. might show that the expense was plain-

R. R. V. Duncan, (Tex. Civ. App.), ly useless, and in such a case, to incur

121 S. W. 362 (personal injury, can be it would be a wilful act on the part of

called on to take only ordinary care to the plaintiff, and no part of the or-

avoid aggravation). dinary conduct of a prudent man.


the measure of damages was merely the market price, the
Supreme Court of Illinois said: "However this might be, if
Ihey had not already invested their money in the corn in contro-
versy, we cannot so hold in the present case. It would be very
unreasonable to require one who has bought and paid for an
article, to have the money in his pocket with which to buy a
second, in case of non-delivery of the first." ^^^

And so in Startup v. Cortazzi,^^^ Alderson, B., said: "It
appears that the price at that time was not the proper cri-
terion for estimating the damages; for as the plaintiffs had
already parted with their money they were not then in a situa-
tion to purchase other seed." So in Wilcox v. Campbell,''*
where the plaintiff, in order to save land from foreclosure,
would have had to raise money in excess of the value of the
land, and it did not appear that he could have raised it, it
was held by the New York Supreme Court that the rule
did not apply, although, if he had raised it, he would have
been entitled to recover it back; and on appeal the judgment
was affirmed. '^^ Upon the same principle the plaintiff will
not be barred of recovery because of failure to avoid the con-
sequences of defendant's wrong if the plaintiff's illness pre-
vented his doing so; ^^° or if he failed to avoid loss by procuring
other goods when there were none in the market.' '^

^^^ Illinois Cent. R. R. v. Cobb, 64 in requiring from his landlord a cove-
Ill. 128. This would, as stated, seem nant to repair, might have been de-
to make the rule applicable only where feated." There would seem to be no
tio consiueration had passed, but the way of escaping the conclusion that in
court probably did not mean to go so all such cases the party injured may
far. The onus is on the defendant to prove his pecuniary incapacity to make
prove that plaintiff might have pro- expenditures of the magnitude re-
cured the corn. If the plaintiff had no quired. And this limitation upon the
more money, nor credit, this would be rule appears to have been applied in
a matter for him to prove in reply. Wilcox v. Campbell, 35 Hun, 234, 100
See Middlekauff v. Smith, 1 Md. 329, N. Y. 325, infra, note (138).
where the Maryland Court of Appeals, i" 2 C. M. & R. 165.
speaking of a covenant by landlord to "* 35 Hun, 234.
repair, and the rule of avoidable conse- *'' S. C. on appeal, 106 N. Y. 325.
quences as applicable to the lessee, '^^ Gulf, C. & S. F. Ry. v. McMur-
says: "Many repairs may have been rough, 41 Tex. Civ. App. 216, 91 S. W.
needed which his peculiar situation or 320.

aVcwmstoTices would not have permitted '■'^ Southern I. & E. Co. v. Holmes-

him to have made, and thus one of the Lumber Co., 164 Ala. 517, 51 So.

very purposes he may have had in view 531.

§§ 221, 221a WHAT care is reasonable 415

§ 221. Amount of care required.

As the rule allows only reasonable expenses, so it requires
the party injured to use ordinary efforts,^"- neither greater
nor less than a prudent man would be likely to use ; and conse-
quently where the jury were told that they must find for the
plaintiffs unless a slight expense and slight effort would have
prevented the injury, this was held to be error. ^^^ And, on
the other hand, the party injured is not under any obligation
to use more than ordinary diligence. ^'''* Prudent action is
required, but ''not that action which the defendant, upon
after-thought, may be able to show would have been more
advantageous to him." ^'^'^ The amount of care required is
not to be measured by "ex post facto wisdom"; and the plain-
tiff is not bound at his peril to know the best thing to do.^^®
The assurances of the defendant that he will repair the injury
will justify the plaintiff in failing to take steps to avoid loss.^"*^

§ 221a. What care is reasonable.

The amount of effort must be determined by all the circum-
stances of the case. If great expense would be required to
prevent the loss, it might be reasonable to decline to incur it.
So in an action against a railroad for failure to erect cattle-
guards, in compliance with statute, it appeared that injury
to the crops might have been prevented by keeping a constant
watch day and night for four or five months, at a cost of two

1^2 Parker v. Meadows, 86 Tenn. 181. trary to the current of authority. So

'" Iowa: Simpson v. Keokuk, 34 la. also does the language of the Supreme

568; Allender v. Chicago, R. I. & P. R. Court of Illinois (Green v. Mann, 11 111.

R., 37 la. 264. 613), to the effect that the rule only re-
Texas; Gulf, C. & S. F. RJ^ v. Dun- quires the performance of "trifling acts."

ham (Tex. Civ. App.), 31 S. W. 1070. '** Indiana: Louisville, N. A. & C.

In Chase tJ. New York Central R. R., Ry. v. Falvey, 104 Ind. 409, 425, 3

24 Barb. 273, an action brought for N. E. 908.

damage done to plaintiff's premises by New York: Leonard v. New York, A.

water which got into her cellar, the & B. E. M. T. Co., 41 N. Y. 544. He is

trial judge charged that she was bound required only to exercise "good faith

to use "ordinary care and diligence" and fair dealing." Gilbert y. Kennedy,

to prevent the house being injured 22 Mich. 117.

thereby, and only ordinary "care and '^^ The Thomas P. Sheldon, 113 Fed.

diligence." The General Term held 779.

this erroneous, for reasons which the '■** Waco A. W. Co. v. Cauble, 19

opinion of Mullett, J., does not make Tex. Civ. .\pp. 417, 47 S. W. 538.

clear. The decision seems to be con- '■" Posl, § 226.


or three dollars a day for a man alone; but it was held that
to require this would be to call for unreasonable efforts and
great expense. ^''^ But the mere fact that the expense is greater
than the plaintiff thinks it ought to be will not justify refusal
to incur it. So in an action for wrongfully sinking plaintiff's
canal boat, plaintiff attempted to raise the boat before the
tide should reach it, and damage the goods; but he could not
hire help except for double wages, and refused to do so, and
the goods were injured. It was held that it was his reasonable
duty to hire men to help him at such price as he had to pay,
and that he could not recover for injury to the cargo that
could have been avoided by employing men at the high rate.^""
A remedy recently discovered and not generally known can-
not reasonably be required. So in an action for deceiving
plaintiff by selling him a vineyard which was affected by
black rot, defendant urged that by the use of a certain spray
the rot could be killed. The remedy was very recent and it
was not in general use at the time the plaintiff was in oc-
cupation of the land, and it was useful only if used with great
skill and judgment, and was very expensive. It was held that
plaintiff could not be charged with negligence for not using
it.'^° If the use of the remedy is a mere matter of judgment,
plaintiff cannot be held responsible for exercising his judgment
wrongly. By overflow of plaintiff's land pasturage of his cat-
tle was injured. It was claimed that he should have put his
cattle on the market at that time and sold in order to avoid
further loss; but it was held that he was not obHged to do so.
If in his judgment the market would have been better in a
short time, he could exercise discretion in the matter; but he
should not allow his cattle to depreciate if he could avoid it.^-'^
Plaintiff may in some cases be held responsible for his igno-
rance, though under ordinary circumstances he would not.

»« Smith V. Chicago, C. & D. R. R., "» Pennsylvania R. R. v. Washburn,

38 la. 518. 50 Fed. 335.

And it has been held that the plain- "" Lurch v. Holder (N. J. Eq.), 27

tiff is under no obligation himself to Atl. 81.

erect the cattle guards under such cir- '*' McCleneghan v. Omaha, etc., R.

cumstances. San Antonio & A. P. Ry. R., 25 Neb. 523, 41 N. W. 350, 13 Am.

V. Knoepfli, 82 Tex. 270, 17 S. W. 1052; St. Rep. 508.
City Ry. v. Adams, 63 Tex. 200.


Where defendant closed a right of way of plaintiff, but put in
place of it another right of way, and plaintiff refused to travel
on it, under the mistaken impression that if he did, he would
ratify the change, it was held that he could not recover dam-
ages for loss of use of the way because it was his duty to re-
duce the damages by using the substituted way.^^^ But in
an action for failure to furnish water to cattle, where plaintiff
might have got water from another water company, but he
did not know this, and instead used river water which injured
the cattle, it was held that he could recover, as he was not
bound at his peril to know the best thing he could do; if he
acted reasonably, he was not barred of recovery. ^^^

In Bradley v. Denton ^^"^ it is held to be well settled and
founded on the clearest principles of equity that if the freighter
fails to furnish return freight, it is the duty of the master to
seek for and obtain other freight, if possible. But where, on
a contract to furnish several cargoes, after one has been fur-
nished, the shipper notifies the carrier that he will not furnish
any more, this is a breach, and the freighter cannot enhance
the damages by returning empty, and claiming full freight.
His natural course is to seek other employment; whether in
the port of destination only, or in other ports as well, must
depend on all the circumstances of the case, such as insurance,
the weather, or the condition of the vessel.

In an action against a railroad company for wrongfully
selling plaintiff a ticket over the wTong route, plaintiff upon
being carried off his route procured a ticket to his destination
which took him over a line where the discomfort of travel was
greater than it would have been over a different line. It was
held that if he selected his route with reasonable care he
could recover for the discomfort. ^^^

§ 221b. Reasonable care in case of personal injury.

The doctrine that only reasonable care is required of the
plaintiff finds a common application in actions for personal

'" Fitzpatrick v. Boston & M. R. R., i" 3 wis. 557.

84 Me. 33, 24 Atl. 432. '" Texas & P. Ry. v. Armstrong

'" Waco Artesian Water Co. v. (Tex. Civ. App.), 41 S. W. 833.
Cauble, 19 Tex. Civ. App. 417, 47 S. W.





injury, where a physician employed by plaintiff is charged by
the defendant with really aggravating the injury by mal
practice. For this, however, the plaintiff, if he selected his
physician with reasonable care, is not responsible; the defendant
and not the plaintiff is chargeable with the result of the phy-
sician's acts.'^^ It has even been held possible for the plain-
tiff to disregard his physician's advice reasonably and with-
out thereby becoming responsible for the result. ^^^ And where
the plaintiff, without actually taking medical advice, had
done what would have been advised by a proper physician,
it was held that plaintiff was not bound to get the most skil-
ful physician m the country, but had done enough when he did
what would be advised by a reasonably skilful physician.'^
On the other hand, if the plaintiff employed a physician whom
he knew to be incompetent, he cannot charge the defendant
with the result. ^^^


i« Illinois: Pullman Palace Car Co.
r. Bluhm, 109 III. 20, 50 Am. Rep. 601;
Chicago City Ry. v. Saxby, 213 111. 274,

72 N. E. 755, 104 Am. St. Rep. 218, 68
L. R. A. 164; Sandwich v. Dolar, 34
111. App. 199; Mt. Sterling v. Crummy,

73 111. App. 572; Chicago City Ry. v.
Cooney, 95 111. App. 471; Joliet v. Le
Pla, 109 111. App. 336.

Maine: Hooper v. Bacon, 64 Atl. 950,
101 Me. 533.

Masscuihusetts: McGarrahan v. New
York, N. H. & H. R. R., 171 Mass. 211,
50 N. E. 610.

Michigan: Reed v. Detroit, 106 Mich.
224, 65 k. W. 567.

Minnesota: Goss v. Goss, 102 Minn.
346, 113 N. W. 690.

Neiiada: Murphy v. Southern Pac.
Co., 31 Nev. 120, 101 Pac. 322.

New York: Sauter v. New York C. &
H. R. R. R., 66 N. Y. 50, 23 Am. Rep.
18: Foels v. Tonawanda, 59 Hun, 567,
14 N. Y. Supp. 46.

Rhode Island: O'Donnell v. Rhode Is-
land Co., 28 R. I. 245, 66 Atl. 578.

South Carolina: Berry v. Greenville,
84 S. C. 122. 65 S. E. 1030.

Te.ras: Houston & T. C. R. R. v.

Hanks, (Tex. Civ. App.), 124 S. W.
136; Texas & P. Ry. v. Mosley, (Tex.
Civ. App.), 124 S. W. 485.

Washington: Hoseth v. Preston Mill
Co., 49 Wash. 682, 96 Pac. 423.

Wisconsin: Selleck v. Janesville, 100
Wis. 157, 75 N. W. 975, 69 Am. St.
Rep. 906, 41 L. R. A. 563.

But in Crete v. Childs, 11 Neb. 252,
it was held that an instruction that if
the plaintiff employed such persons to

Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 1) → online text (page 45 of 88)