William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) online

. (page 88 of 107)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 88 of 107)
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thereupon the ])Iaintin; undertook to extricate the horse, and while so
df>ing was injured by a blow from the horse's head, and it was held
that the defect in the bridge was the pi'ljximate cause of the injury, and


that the town was liable therefor. Page v. Bucksjwrt, CA Mc. 5-i ; S,
C, 18 Am. Rep. 239.

§ 6. Canals. See ante, Yol. 1, T38, 739.

§ 7. Carriers of passengers. Carriers of passengers are not bound
at the common law to insure the absolule safety of their passengers,
but they are required to exercise the strictest care consistent with the
reasonable performance of their contract of transportation. And to
render them liable for any injury to a passenger while under their
charge, it is enough if it was caused solely by any negligence on their
part, however slight, if, by the exercise of the strictest care and precau-
tion, reasonably within their power, the injury would not have been
sustained. See ante, Vol. 2, pp. 63-98, and cases cited.

The gravamen of the action in such case is the breach of the duty
imposed by law upon the carrier, to carry safely, so far as human skill
and foresight can go, the persons it undertakes to carry. This duty
exists independently of contract, and although there is no contract in a
legal sense between the parties. Whether there is a contract to carry,
or the service undertaken is gratuitous, an action lies against the car-
rier for a negligent injury to a passenger. Carroll v. Staten Island H.
B. Co., 65 Barb. 32 ; s'. C. affirmed, 58 K Y. (13 Sick.) 126 ; S. C,
17 Am. Rep. 221. See Yol. 2, 85. ■

So, the liability of carriers depends not upon the physical ability of
the passengers, but upon their own conduct. And where a stage coach
was so carelessly driven by a drunken driver that he capsized the coach
and greatly injured a female passenger, causing her to miscarry, the
carrier was held liable for all the immediate results, and he was not per-
mitted to complain that such passenger was not in a condition to have
a stage upset. Sawyer v. Dulany, 30 Tex. 479. And a person may
recover of a carrier for an injury done to his person, although not with-
out fault himself, if the mischief was the result of gross negligence on
the part of the carrier, and could have been avoided by the exercise of
ordinary care. Ante, Yol. 2, 75. Thus, a passenger who insisted on
riding on the outside of a coach, though requested by the driver to
take his seat inside, was held entitled to recover for injuries caused by
the negligence of the driver, the position of the plaintiff not having
contributed to the accident. Keith v. PinJcham, 43 Me. 501.

Where steam conveyances are used by carriers the care must increase
in proportion to the risk. See ante, Yol. 2, 64. It is the duty of a
railroad company to use due care, not only in conveying its passengers
upon the journey, but also in providing for their accommodation
while they are waiting for its trains, and it is held liable for the con-
sequences of a neglect to properly direct passengers respecting the


mode of entering its cars. Allender v. C. R. I. c& P. H. Co., 43
Iowa, 276. "Whether or not it is the duty of a railway company's
employees to assist a passenger in getting upon a car must be deter-
mined by the circumstances of each particular case, and, therefore, the
question may be left to the jury. Id.

On the part of a person about to take passage on a railway train, it
is his duty to inform himself when, where and how he can go or stop,
according to the regulations of the railway company, and if he make a
mistake, not induced by the company, against which ordinary diligence
would have protected him, he has no remedy against the company
for the consequences. Ohio, etc., Railway Co. v. Applewhite, 52
Ind. 540. And see Vol. 2, 67. But it is the duty of the company to
use the utmost care and diligence in providing for the passenger a safe
and convenient way and manner of access to its trains, and in prevent-
ing the interposition of any obstacle which would unreasonably impede
him or expose him to harm while proceeding to take his seat in the
cars, in order to prevent those injuries which human care and fore-
sight can guard against. Warren v. Fitchhurg R. R. Co., 8 Allen,
227. And see Allender v. C. R. I. (& P. R. Co., 37 Iowa, 269 ; S. C.
affirmed, 43 id. 276. See jt^os^, 684, § 17. And see tit. Railroads.

§ 8. Clerks and recording officers. Clerks of courts, registers of
deeds, and other like ministerial officers are, independently of statute,
liable in damages to any one who sustains a special injury by their
omission to perform, or by their negligent performance of a duty im-
posed upon them. See Morange v. Mix, 44 N. Y. (4 Hand) 315 ; Kim- '
hall V. Connolly, 33 How. (N. Y.) 247 ; S. C, 2 Abb. Ct. App. 504 ;
3 Keycs, 57; Bevins v. Ramsey, 15 How. (U. S.) 179. And such
officers are likewise lial)lc for the default or negligence of their deputies
within the ordinary course of their business. Welddes v. Kdsell, 2
McLean (C. C), 366.

The clerk of a court has been held liable for neglecting to enter a
cause on the docket, the 'plaintiff in the action having been thereby
damaged {Brown v. Lester, 13 Sm. & M. [Miss.] 392) ; so, he is
liable to a person damaged by his failure to require security for costs
ill a |ii(p])er case on issuing a writ {Wright v. Wheeler, 8 Ired. [N. C]
Jj. I84j ; or for negligently acce|)ting a bond with insufficient sureties,
it l)eing his duty to iiKpiire into their sufficiency {McNutt v. Liming-
ston, 7 Sm. 6c M. [Miss.] 641) ; or for refusing or neglecting to issue
a writ in a proper case. Anderso)i v. Johett, 14 La. Ann. 614. And
lie incurs tlie sanic liability for negligent certificates. Work v. lloof-
nagle, 1 Yeates (Penn.), 506 ; Williams v. Hart, 17 Ala. 102 ; Barnes
v. Smith, 3 Trniii]»h. (Tenn.) 82. But he is not liable for an omission


to do an act which i8 not required of him by law. Robinson v. Gell^
12 C. B. 191. See, also, State v. Ituland, 12 Mo. 2G4.

§ 9. Death. As to tliia branch of the subject, see ante^ tit. Death^
Vol. 2.

At common law, no right of action accrued to any one for personal
injuries resulting in instant death, but if there was an appreciable
interval of suffering a right of action did accrue to the person injured,
and that right of action is made to survive to his pcrsoruil representa-
tive by statute in Kentucky. Hansford v. Payne cfc Co., 11 Bush
(Ky.), 380.

In order to maintain an action under the Illinois statute for wrong-
fully causing the death of a human being, there must be a wrongful
act, neglect or default of the defendant, causing the death of the intes-
tate under such circumstances as would entitle him to maintain an
action if death had not ensued, and he must have left a widow or next
of kin. Where these are shown, the plaintiff is entitled to nominal
damages at least. Quincy Coal Co. \. Hood, 77 111. 68.

In an action on the case, under the Colorado statute, for injuries
occasioned by negligence and resulting in the death of the party
injured, the existence of any of the descendants or kin named in the
statute is sufficient to maintain the action. Kansas Pacific P. P. Co.
v. Miller, 2 Col. T. 442.

The rule that personal actions die with the persons is peculiar to the
common law, traceable to the feudal system and its forfeitures, and
does not obtain in admiralty. And it is held that a husband can
recover by a proceeding in rem against the vessel which caused the
death of his wife, for the injury suffered by him thereby. The Sea
Gull, Chase's Dec. 145. So, the widow and son of an employee, killed
on a steamboat by the negligence of an engineer, have suffered an
injury for which they have a remedy against the owners of the vessel.
The Highland Light, id. 150. See ante, 390, tit. Master and Servant.

§ 10. Driving and riding. It is the general rule that one who
fails to exercise ordinary care in riding or driving is liable for all
damages thereby occasioned. Strohl v. Levan, 39 Penn. St. 177 ;
Bishop V. Ely, 9 Johns. 294 ; Barnes v. Hurd, 11 Mass. 57 ; Tucker
V. Henniker, 41 N. H. 317 ; 'Foster v. Goddard, 40 Me. 64. And it
is no defense to an action to recover damages for an injury received
from the running of the defendant's horse against the plaintiff, on the
highway, that the plaintiff was in a use of the highway not justified
by law, provided no negligence, or want of ordinary care on his part,
contributed to produce the injury. Bigelow v. Peed, 51 id. 325.
And see Havies v. Mann, 10 Mees. & W. 545.


One who undertakes to drive a carriage in a crowded street must ex-
ercise a diligence proportionate to the dangerous nature of that employ-
ment. Gannon v. Bangor, 38 Me. 443 ; Williams v. Richards, 3
Carr. & K. 81. And a driver, who sees a child lacking discretion in
the street, should exert more care to avoid doing an injury, than he
would use for the safety of a person whose presumed age and experi-
ence would prompt him to take steps necessary for -his own security.
Vaughn v. Scade, 30 Mo. 600; Edsall v, VandemarTc, 39 Barb. 589.
So, persons who are driving over a crossing for foot-passengers should
di-ive slowly, cautiously, and carefully. Cotton v. Wood, 8 C. B. (N.
S., 571. And there can be no doubt that driving in a public street
at the rate of a mile in three minutes and ten seconds, when the law
limits driving to a mile in eleven minutes, is amply sufficient to charge
the driver with the consequences that follow from such driving.
Moody y. Osgood, 60 Barb. 644; S. C. affirmed, 54 N. Y. (9 Sick.)

It is an instance of culpable negligence to whip violently, while close
behind another traveler, a horse which has already shown itself restive
and vicious {Center v. Finneij, 17 Barb. 94; S. C. affirmed, 2 Seld.
Notes, 44) ; or to ride or drive at such a rapid rate of speed as will
Tender it impossible to check the horse in time to avoid obstacles which
may reasonably be anticipated on the way, or to turn it aside upon
meeting or passing other travelers who are themselves acting prudently
{Payne v. Smith, 4 Dana [Ky.], 497) ; or to put a spur into a horse
when close by any person {North v. Smith, 10 C. B. [N. S.] 572) ; or
to permit a horse and vehicle to go unattended on the highwa}'. TF<s^Z-
ing \. Judge, -^Q ]^Avh. 193; Tenney v. Tuttle, 1 Allen, 185; Park
v. O'Brien, 23 Conn. 339. And reckless and noisy driving, which so
frightens a horse on or near the highway that he runs away, to the in-
jury of the plaintiff's property, is actionable negligence though no
collision has occurred. Howe v. Young, 10 Ind. 312 ; Burnhami v.
Butler, 31 N. y. (4 Tiff.) 480. So, if the owner of a horse has
notice that his horse when at large is in tlic habit of running and
kicking upon the sidewalk, it is such negligence for him to turn him
loose in the streets of a city as will render hiui liable for any injury
done to persons or ])roperty by such horse. D'lckaon v. McCoy, 39
N. Y. {12 Till.) 400.

A ])erson is responsible for an accident which results from his prior
negligence. Kennedy v. Way, Bright. 168.

Where a horse, not properly secured, is frightened and runs away,
the neglect of the owner to guard against such an accident renders him
liable for the consequences, as well as the person causing the fright.


McCahill v. Kipp, 2 E. D. Smith (N. Y.), 413. And from the fact
that horses got loose and ran away, negligence in fastening them may
be reasonably inferred. Strup v. Edens^ 22 Wis. 432. See, also, lliiirir-
rneU v. Weater^ Bright. (Penn.) 133. That is not an inevitable acci-
dent which in any way results from the acts of the defendant or his
servants. Goldeij v. Pennsylvamjia li. R. Go.y 30 Penn. St. 242.

But if a horse runs away without the fault of the driver, he is not
answerable for the injury thereby occasioned. Kennedy v. IFay,
Bright. (Penn.) 186 ; Holmes v. Mather, L. R, 10 Exch. 261 ; S. C,
16 Eng. R. 384, note ; Sullivan v. Scripture, 3 Allen, 564. Nor is
the owner of a horse liable for injuries done by it purely from vicious-
ness, while being driven by him or his servant, unless it appears that
he had notice of its vicious disposition. Ilanmuick v. Wldte, 11 C. B.
(N. S.) 588.

The fact that the driver of a horse drives him or stops him within
fifty feet of a railroad crossing, and that the horse, frightened by the
noise of the train, runs away and injures a person, does not itself show
as matter of law want of due care on the part of the driver. Jlerrick
V. Sidlivan, 120 Mass. 576.

If an accident is caused by a defective vehicle or harness, this is
negligence in the owner, if the defect was known or ought to have
been known by him. Thus, a master is held liable for an accident
in consequence of the chain-stay of a cart breaking, when the horse,
being frightened, ran away, causing damage, for he is guilty of negli-
gence in not having good tackle. Welsh v. Lawrence, 2 Chit. 262.
See Doyle v. Wragg, 1 Fost, & F. 7. So, if a master employs a
known drunkard as a driver through whose negligence while intoxicated
an injury is done to another, the master is liable. Sawyer v. Sauer,
10 Kans. 466.

A person who leaves a heavy mass of timber in the streets of a city
unguarded is responsible to another person who is injured by its being
blown down by the wind. Thomas v. Hook, 4 Phila. 119.

A traveler having before him the whole road free from obstructions,
and having no notice of any vehicle behind him in season to stop or
change his course, is at liberty to occupy any part of the road that he
pleases. Foster v. Goddard, 40 Me. 64 ; Daniels v. Clegg, 28 Mich.
32. See, also. Brooks v. Hart, 14 N. H. 307. But it is a universal
custom in this country for travelers to take the right-hand of the road
when meeting, if practicable, and this rule is enforced by statute in
many of the States so far as it respects travelers in vehicles or on horse-
back. The statute usually prescribes that travelers shall pass to the
right of the " center of the road ;" and this is construed to mean the


center of the traveled or worked part of the road. See Simmonson v.
SteUenmerf, 1 Edin. (N. Y.) 194 ; Kennard v. Burton, 25 Me. 39 ;
Smith V. Dygert, 12 Barb. 613 ; Jaquith v. Richardson, 8 Mete. 213.
A mail stage coach is protected by act of congress from obstruction,
but is subject in all other respects to the laws of the road. Bolton v.
Colder, 1 Watts (Penn.), 360. But the " law of the road," as it is
commonly termed, does not apply to buildings that are being moved
through a public highway.- Graves r. Shattuck, 35 N. H. 257. And
a person on foot or on horseback cannot compel a teamster, who has a
heavy draught, to leave the beaten part of the road, if there is sufficient
room to pass ; and this rule applies where a person on horseback meets
a buggy carrying three persons drawn by a single horse. Beach v.
Farmeter, 23 Penn. St. 196. And see Grier v. Sampson, 27 id. 183.
Where a public way is impassable, and where the act is done as the
only means of extricating a team from a mudhole or bog therein, the
pulling down of a fence at the side of the way, and passing over the
adjoining land, is a necessary and justifiable act. Hedgepeth v. Bol^-
ertson, 18 Tex. 858. And see Kent v. Judhins, 53 Me. 160. The law
of the road does not apply to one driver seeking to pass another on the
same road {Bolton v. Colder, 1 Watts, 360 ; Avegno v. Ilart, 25 La. Ann.
235 ; 13 Am. Rep. 133) ; nor has it any application to the meeting of
vehicles on a railway track with vehicles of a difEerent kind {Hegan v.
Eighth Avenue Eailvmy Co., 15 N. Y. [1 Smith] 380) ; nor in favor
of persons crossing or turning into the road. Lovejoy v. Dolan, 10
Gush. 495.

When two persons, each without any better right than the other,
strive to occupy the same place in the public highway, he is in the
wrong who first uses force. Goodwin v. Avery, 26 Conn. 585.

Highways may pro]ierly be used for other purposes than the accom-
modation of the public travel, provided such use be not inconsistent
with the reasonably free passage of the public over them. Thus, the,
streets of a town may be used for tlie temporary deposit of goods in their
transit to the storeliouse, or for wharfage, regard being paid to their
evident object and purpose. JIalght v. Keokuk, 4 Iowa, 199. And it
is held that to leave a horse fastened only by a strap and weight while
the wagon is backed up to the sidewalk to be loaded, although the
team tiiereliy extends half across the highway and is liable to bo liit by
a runaway, is not, as a matter of law, negligence {Greenwood v. Collar
han, 111 Mass. 29s) ; and the owner of the team may maintain an
action against one who injures the horse by negligently driving another
wagon against it, when by exercising more care he might have avoided
doing so. Id.; Steele v. Barkhardt, 104 Mass. 59; S. C, 6 Am. Re}).


191. So, the fact that a driver is on the wrong side of the road will
not excuse another for negligently driving into him. /Spoffo?'d v.
Harlow, 3 Allen, 176 ; Olay v. Wood, 5 Esp. 44.

Persons driving cattle through the streets of a city are bound to use
the utmost care and diligence to avoid injuries to people who are pass-
ing through the street. Their liability is like that of a common carrier.
Ficken V. Jones, 28 Cal. 618.

In England, foot passengers take the right-hand when meeting, but
an opposite rule applies to horses and vehicles, which always take the
left of the road. And the rule applies to saddled horses as well as
carriages. Turley v. Thonias, 8 Carr. & P. 103. The mere fact of a
man's driving on the wrong side of the road is no e\ddence of negli-
gence in an action against him for running over a person who was
crossing the road on foot. Lloyd v. OgUhy, 5 C. B. (N. S.) 667. It
is as much the duty of persons crossing a street or a road to look out
for passing vehicles, as it is for the drivers of those vehicles to be vigi-
lant in not running against persons crossing. Cotton v. Wood, 8 C. B.
(N. S.) 568. See 2^ost, tit. Ways.

§ 11. Fences. See ante, Vol. 3, tit. Fences. And see post, 684,
§ 17.

§ 12. Fire. One who designedly sets tire to any thing upon his
own premises must use ordinary care to avoid injury thereby to the
property of another. FiUiter v. Phijppa/i'd, 11 Q. B. 347; Dewey v.
Leonard, 14 Minn. 153. And it has been held that a man who negli-
gently sets fire on his own land, and keeps it negligently, is liable to
an action at common law for any injury done by the spreading or com-
munication of the fire directly from his own land to the property of
another, whether through the air or along the ground, and whether he
might or might not have reasonably anticipated the particular manner
and direction in which it is actually communicated. Higgins v. Dewey,
107 Mass. 494 ; S. C, 9 Am. Rep. 63. See, also, Fahn v. Reichart,
8 Wis. 255 ; Well v. Roine, etc.. Railroad Co., 49 N. Y. (4 Sick.)
420 ; S. C, 10 Am. Rep. 389 ; Amriit v. Murrell, 4 Jones (N. C),
323 ; Cleland v. Thornton, 43 Cal. 437. So, if a party makes a fire
for a necessary purpose, upon or near the grounds of another, but neg-
ligently leaves it, with combustible material about it, and the fire
s]3reads and destroys adjacent property, the party building the fire is
liable for the damages thereby occasioned. Id. See Calkins \. Barger,
44 Barb. 424.

The burning of a fallow and of superincumbent combustible matter
on tl\e surface is of frequent necessity in husbandry, and is a lawful
act, unless the fire be set at an improper time or be carelessly managed.


Miller v. Martin, 16 Mo. 508 ; Eanlon v. Ingram, 3 Iowa, 81 ; Ilewey
V. Nourse, 54 Me. 256 ; Gilson v. North Grey, etc., 33 Upper Can. Q-
B. 128 ; Hays' Administrator v. Miller, 6 Hun (N. Y.), 320 ; S. C.
affirmed, 10 id, xiv. Ordinary care must be exercised to avoid the
spread of the tire upon the land of others, but tlie mere fact tliat tlie
person making a fire did not constantly watch it does not tend to
prove negligence. Calkins v. Barger, Ir^t Barb. 421. The burden of
proof is upon the party complaining to show negligence, of which the
fire itself is no evidence. Bachelder v. Heagan, 18 Me. 32 ; Tourtel-
lott V. Rosehrooh, 11 Mete. (Mass.) 460 ; Hinds v. Barton, 25 N. Y.
(11 Smith) 544. But the rule is otherwise when one sets fire on land
which does not belong to him, in which case the burden of proof is on
the defendant to show that he had good cause for firing the land ; and
especially is this so, with fire started on prairies, or other wild lands -
where its progress is likely to be attended with great destruction. Fin-
ley V. Langston, 12 Mo. 120. And see Armstrong v. Cooley, 5 Gilm.
(111.) 509.

One who uses a steam engine on his premises is bound to the nse of or-
dinary care in confining sparks, especially if he burns wood. The want
of such care is strong evidence of negligence, and where a steam engine
was used without putting on a spark-catcher, and the sparks set fire to
a neighbor's farm buildings, the person using the engine was held
liable fur the damage done. Teall \. Barton, "^O^'Arh. 137; S. C.
aflirmed, 25 N. Y. (11 Smith) 137.

It has been held that the negligent burning of a house, and the
spreading of the fire to a neighboring house, and the burning thereof,
do not irive the owner of the last house a cause of action ao^ainst the
owner of the liouse in which the fire originated ; the damage in such
case being deemed too remote. Ryan v. New York Central Railroad^
35 N. Y. (8 Tiif.) 210. So, an engine on a railroad negligently set fire
to a house, the fire from the house communicated to another at some
distance from it, wliich was consumed with all its contents, and it was
held that the railroad comjjany were not lial)le for damages for the last
l>uildiijg and its contents. Pennsylvania R. R. Co. v. Kerr, 02 Penn.
St. 353 ; S. C, 1 Am. Rep. 431. See, also, Macon R. R. Co. v. Mc-
Connell, 27 (ira. 481. But tliis rule is not adopted by the courts in
some of the States. Thus, it is held in Illinois, if fire is communicated
from a railway locomotive to the house of A., and thence to the house
of B., it is not a conclusion of law tliat the fire sent forth by the loco-
motive is to 1)0 regarded as the remote, and not tlie proximate cause of
the injury to B., but a question of fact, to be determined in each, case
by the jury under the instructions of the court. Fent v. Toledo, etc.y


Railway Co.^ 59 111. 349; S. C, 14 Am. Rep. 13. And in a recent
case in Kansas, it is licld that where two fires are caused by sparks
emitted from one of the defendant's engines, and neither of the fires
is kindled on the land of the plaintiff, but each is kindled on the
land of a differen owner, and these two fires spread, finally unit-
ing, and then pass over the property of several lauded proprietors and
finally reach the plaintiff's property three and a half to four miles dis-
tant from where the fires were first kindled, and there do the damage
of which the plaintiff complains, the damage is not too remote to be
recovered. Atchison, eto.^ R. R. Co. v. Stanford, 12 Kans. 354 ; S.
C, 15 Am. Rep. 362. See, also, Kellogg v. Chicago, etc., Railway Co.,
26 Wis. 223 ; S. C.y. 7 Am. Rep. 69 ; Pennsylvania R. R. Co. v. Ilojjc,
80 Penn. St. 373; S. C, 21 Am. Rep. 100 ; Perley \. Eastern R. R.
Co., 98 Mass. 414 ; Henry v. Southern Pacific R. R. Co., 50 Cal.

A railroad company, having no express authority to use steam or
other power involving the use of fire, is held liable for the escape of
fire from its engines, without respect to the question of negligence,
Jones V. Festiniog Railway Co., L. R., 3 Q. B. 733. And this is so by
statute in some of the States in the case of chartered railroad compa-
nies. See Stearns v. Atlantic, etc., R. R. Co., 46 Me. 95 ; Ilooksett
V. Concord, etc., R. R. Co., 38 N. 11. 242 ; Ingersoll v. Stockhridge,
etc., R. R. Co., 8 Allen, 438. But in the absence of a statute impos-
ing the liability, a railroad company, authorized by its charter to use
steam power, is not liable for injuries unavoidably produced by keep-
ing fire for the purpose of generating steam, Burlington, etc., R. R.
Co. v. Westover, 4 Neb. 268 ; Freemantle v. Londori, etc.. Railway Co.,
10 C. B. (N. S.) 89 ; Vaughan v. Tqf Vale Railway Co., 5 Hurlst. &
N. 679. And where a party seeks to recover on account of injuries
caused by fire communicated from its engines, the burden of proof is
upon him to show negligence in the company. Philadelphia, etc., R.

Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 88 of 107)