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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

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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 91 of 107)
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S. C, 17 Am. Rep. 359. But see id. 3G3, n.

The neglect to sound tlie whistle or to ring the bell of a locomotive
engine is not, of itself, such negligence as will justify a recovery for
damage io property injured upon the track. Flattes v. Chicago, etc.,
R. R. Co., 35 Iowa, 220. The injury must be shown to be the result
of the omission, or a neglect of the duty imposed by statute, and this is
to be determined by the jury. Indianapolis, etc., R. R. Co. v. Black-
inan, 63 111. 117; Ilowenstein v. Pacific R. R. Co., 55 Mo. 33 ; Metn-
yUs R. R. Co. V. Bihb, 37 Ala. 699. See Wakefield v. Cmm., et<^.,
R. R. Co., 37 Yt. 330 ; Augusta, etc., R. R. Co. v. McElmim-ry, 24
Ga. 75 ; Pittshurg, etc., R. R. Co. v. Earns, 13 Ind. 87.

A railroad company is not liable for an injury to an animal, where
the escape of steam, or other necessary noise made by an engine or
a train causes the animal to take fright, and the injury is the result of
the fright. Burton v. Philadelphia, etc., R. R. Co., 4 Ilarr. (Del.)
252; Ohio, etc., Railv:iay Co. v. Cole, 41 Ind. 331 ; Atchinson, etc., R
R. Co. V. Loree, 4 Neb. 446. But if the fright be produced by noise
unnecessarily made, the company is liable for all the consequences.
Manchester, etc., Railway Co. v. Fallarton, 14 C. B. (N. S.) 54 ; Ilill
V. Portland, etc., R. R. Co., 55 Me. 438 ; Pennsylvania R. R. Co. v.
Barnett, 59 Penn. St. 259 ; Culp v. A. dh iY R. R. Co., 17 Kan.
475.

The rule, that any person who goes upon a railroad track, incau-
tiously, or without using all reasonable precaution to escape injury, as-
sumes the hazard, and if injury ensues, is without remedy, has no ap-
plication to a case where, by the arrangement of the company, it is
made necessary for passengers to cross the track in passing to and from
its depot to its trains. Klein v, Jewett, 26 N. J. Eq. 474. And where
a railroad company has created extra danger, it is bound to use extra
precautions, and the precautions to be adopted must be adequate to in-
sure the safety of every passenger who exercises ordinarj^ care. Id.

It has been held in Tennessee, that, if the trains of one railroad com-
pany, running on the road of another company, be under the exclusive
control of the servants of the latter, the latter is liable for all damages
occurring through negligence. But if the servants of both companies
jointly control the trains, both companies are liable. JVashville, etc.,
R. R. Co. V. Carroll, 6 Ileisk. (Tenn.) 347. And see Mills v. Orange,
etc., R. R. Co., 1 Mc Arthur, 285. On the other hand, it has been
held that, where a railroad company permits other companies or per-
sons to exercise the franchise of running cars drawn by steam over its
road, the company owning the road, and to which the law has in-
YoL. lY.— 87



690 NEGLIGENCE.

trusted the franchise, is liable for any injury done through negligence,
the same as though the company owning the road were itself running
the ears. Macon^ etc.^ R. R. Co. v. Mayes., 49 Ga. 355 ; S. C, 15
Am. Rep. 678. So, the liability of a corporation owning a railroad,
for injm'ies caused by negligence, is held not to be affected by the fact
that the corporation have leased the road, and it is operated, at the
time of an injury so caused, by the lessees ; nor even by the fact that
it is in charge of, and run by a receiver, unless, perhaps, when his pos-
session and control are exclusive. Railroad Company v. Brown, 17
Wall. 445. See Klein v. Jewett, 26 N. J. Eq. 474. It is held in New
York, that a railroad company which has parted with the possession
and control of its road under a lease thereof to another company, con-
taining a covenant that the lessee shall keep up the fences, is not liable
to one traveling upon a highway, for damages resulting from an omis-
sion of the lessee to repair a fence which was in good order at the time
of the lease and surrender of possession. Ditchett v. SpuyUn Duyvil,
etc., R. R. Co., 67 N. Y. (22 Sick.) 425. But see MaJimey v. AUom-
tic, etc., R. R. Co., 63 Me. 68.

By statute, in some of the States, the lessees of railroads are made
liable, equally with the corporations owning the tracks, for the want of
fences. See Clement v. Cornfield^ 28 Vt. 302 ; Wy^nan v. Penobscot,
etc., R. R. Co., 46 Me. 162 ; McCall v. Chamherlain, 13 Wis. 637;
Traay v. Troy, etc., R. R. Co., 55 Barb. 529 ; S. C. affirmed, 38 N.
Y. (11 Tiff.) 433. In Iowa, where two railroad companies operate
trains on the same road, one being the owner and the other a lessee,
each is liable only for stock injured or killed by its trains, by reason of
the road being unfenccd, and not for that injured or killed by the
trains of the other. Stephens v. Damcnport, etc., R. R. Co., 36 Iowa,
327. In Illinois, both companies are held responsible. Toledo, etc.,
R. R. Co. v. RumJjold, 40 111. 143. While, under the Indiana statute,
the company owning a railroad is lial)le for stock killed by a train on
the road, without reference to the company or ])ersons who may have
been running the locomotive or cars that caused the injury, and such
company may be sued alone. Ft. Wayne, etc., R. R. Co. v. Iline-
lamjh, 43 Ind. 354. ,

In Illinois, it is held to be negligence in a railway company to permit
or suffer weeds or any thing else to grow upon its right of way to such
a height as to materially obstruct the view of a highway crossing ; and
if injury results to stock at such crossing, that might liave been avoided
but for such obstruction, the company will be liable. Indianapolis,
etc., R. R. Co. V. Smith, 73 111. 112.



NEGLIGENCE. 691

§ 18. Real property. It is a general principle of the coramoTi law,
that the owner of real y)roperty is bound so to control its use as not to
produce injury to others. See Earle v. Ilall, 2 Mete. (Mass.) 353,
He is not, however, to be restrained in the prudent and reasonable use
of his land, and he is not chargeable with the negligent acts of another
in doing work thereon, unless he stands in the character of employer
to the one guilty of the negligence, or unless the work as authorized
by him Avould necessarily produce the injuries complained of, or they
are occasioned by the omission of some duty incumbent upon him.
There is held to be no distinction, \\\ this respect, between an owner of
real and of personal property, and the former is held to no stricter liability
for the negligent use and management of his real estate, or of negli-
gent acts upon it by others, than is the latter as to a similar use (jf his
property. Reedie \. London^ eU., Railway Co., 4 Exch. 244; Butler
V. Hunter, 7 Hurlst. & N. 826 ; RoUnsmi v. Wehh, 11 Bush (Ky.),
464 ; McCafferty v. SpuyUn Duijvil, eU\, R. R. Co., 61 N. Y. (16
Sick.) 178 ] S. C, 48 How. 44 ; 19 Am. Rep. 267. Thus, it is held in
tlie case last cited, that a railroad corporation which has let by contract
the entire work of constructing its road, and has no control over those
employed in the work, is not liable for injuries to a third person, occa-
sioned by negligent acts in doing the work of those thus employed,
such as blasting in a manner to throw rocks upon the lands of another.
And see King v. Livermore, 9 II un (N. Y.), 301.

The owner may use his land in such reasonable way as his judgment
shall dictate, either by making excavations or superstructures thereon,
subject, however, to the implied condition that he shall not thereby
interfere with his neighbor in the enjoyment of the same right in
respect to his adjacent land. Each is entitled to have his soil in its
natural state sustained, Mdien necessary, by the lateral support of the
adjacent soil of the other, but neither has the right to burden the land
of the other with the support of any additional weight, as that would
be to make the land of the one servient to that of the other. Steven-
son V. Wallace, 27 Gratt. (Ya.) 77; City of Quincy v. Jones, 76 111.
231 ; S. C, 20 Am. Rep. 243. The owner of a building standing
upon the line or boundary of his land may, however, acquire a right to
the lateral support of the same from the soil of the adjacent owner by
contract or by prescription, and this riglit will constitute a burden upon
the adjacent property. Id. And see Yol. 2, tit. Easements. But see
Mitchell V. Mayor of Rome, 49 Ga. 19 ; S. C, 15 Am. Rep. 669. In
general, however, if injury is sustained to a building in consequence of
the withdrawal of the lateral support of the neighboring soil of another,
where it has been withdrawn Avith reasonable skill and care to avoid



692 NEGLIGENCE.

unnecessary injury, there can be no recovery. Beard v. Murphy, 37
Yt. 99 ; McGuire v. Grant, 24 N. J. Law, 356 ; Moody v. McClel-
land, 39 Ala. 45 ; City of Cincinnati v. Penny, 21 Ohio St. 499 ; S.
C, S Am. Rep. 73. And see ante, tit. Injunctions. But, if a person,
by carelessness in making an excavation in his own ground, causes the
fall of, or injury to a house erected on the land adjoining, he is liable
in damages for the injur}-. Baltimore, etc., R. R. Co. v. Rearwy, 42
Md. 117.

The owner or occupant of real property is bound, so far as he may
be able to do so by the exercise of ordinary care, to keep it in such
condition, that it will not by any insufficiency for the puq^ose to which
it is put injure any adjoining owner or occupant, or any lawful passer by.

White V. Phillips, 15 C. B. (N. S.) 245 ; Schwartz v. Gilmore, 45 111.
455; Mullen v. St. John, 57 N. Y. (12 Sick.) 567; 15 Am. Eep. 530.
And he is bound, also, to use care and diligence to keep the premises in

a safe condition for the access of persons who come thereon by his in-
\atation, express or implied, for the transaction of business. Carleton v.
Franconia Iron, etc., Co., 99 Mass. 216. And see Indermanr v. Barnes,
L. It., 2 C. P. 311; Ilohnes v. ^Northeastern Railway Co., L. E.., 4
Exch. 254. But a proprietor is not bound to make his premises safe
to persons entering for their own convenience or pleasure without his
invitation, or without inducement by the use to which he has appropri-
ated them, either expressly or l)y some preparatory adaptation thereto
which would naturally and reasonably lead persons to suppose that
they might properly and safely enter. Strauh v. Soderer, 53 Mo. 38.
And see Nicholson v. Erie Railway Co., 41 N. Y. (2 Hand) 525 ;
ZoeUsch V. Tarlell, 10 Allen, 385 ; GaiUret x. Pgerton, L. E., 2 C. P.
371 ; ante, 653, § 1. So, it has been said that a landlord who lets a house
in a dangerous state is not liable to the tenant's customers or guests for
accidents. Rohh'ms v. Jones, 15 C. B. (N. S.) 221, 240. But see God-
ley V. Ilaijerty, 20 Penn. St. 387 ; luiiser v. Ilirth, 46 How. (N. Y.)
161 ; S. C, 4 Jones & Sp. 344. And in a recent case it is held that
the mere fact that the owner of a building has leased it does not ex-
empt him from liability for a personal injury occasioned by a defect in
the entrance-way thereto, left in its original construction. Larue v.
Farren Hotel Co., 116 Mass. 67. And %q>q, Anderson v. Biclcie, 1 Eobt.
(N. Y.) 238 ; S. C, 17 Abb. S3 ; 26 How. 105. But the owner of a
l)Uilding with whom the tenant has covenanted " to make all needful
and proper re])airs, l)()tli intfrnal and external," is not liable to a person
injured by a fall of snow and ice naturally collected on the roof, which
liy due precaution the tenant might have prevented. Leonard v.



NEGLIGENCE. 693

Storer, 115 Mass. 86 ; 15 Am. Rep. 70. And see Pretty v. Bickmore,
L. K, 8 C. P. 401 ; S. C, 6 Eng. R. 182.

A person having the right to excavate a street or other land is bound
to do it with all necessary and reasonably practicable skill and care,
so as to save the neighboring proprietors from any injurious conse-
quences, which, by overflow or otherwise, might result from changing
the natural surface of the ground, and if he does not use such skill and
care, he is liable for damages. Rau v. Minnesota, etc., R. R. Co., 13
Minn. 442. See, also, Livingston v. McDonald, 21 Iowa, 160 ; Roh-
inso7i V. Black Diamond Coal Co., 50 Cal. 160. So, one who, in build-
ing or repairing his house, obstructs the public gutter in front with
building materials, is liable for damage caused by the overflow of the
water from very heavy rains into another's cellar. Ball v. Armstrong,
10 Ind. 181. And the occupant of upper rooms in a building must use
in the conduct of his business such care, caution, attention and discre-
tion, as an ordinarily prudent man would put forth to prevent injury
being sustained by the occupant below, from water or other substances
leaking through into the rooms of the latter. Warren v. Kauffman, 2
Phil. (Penn.) 259 ; Stapenliorst v. American Manuf. Co., 46 How.
(N. Y.) 510 ; S. C, 15 Abb. (N. S.) 355 ; 4 Jones & Sp. 392 ; Killion
V. Power, 51 Penn. St. 429 ; Blythe v. Proprietor, etc., 11 Exch. 781.
And see Locust Mountain, etc. v. Gorvell, 9 Phil. (Penn.) 247. But
If he exercise such care, caution, etc., he is not liable. Brown v. Elliott
45 How. (N. y.) 182; S. C, 4 Daly, 329; RudolphyN. Fuchs, 44
How. (N. F.) 155. So, one, who stores water on his own land, and uses
all reasonable care to keep it safely there, is not liable to an action for an
escape of the water which injures his neighbor, if the escape be caused
by an agent beyond his control, such as a storm, Mdiich amounts to vis
major, or the act of God, in the sense that it is practically, though not
physically, impossible to resist it. Nichols v. Marsland, L. R. , 10
Exch. 255 ; S. C, 14 Eng. R. 538. The proprietor of a drain, who
uses ordinary care and prudence in closing it, is not liable for dama2:e
caused to his neighbor by -the sudden overflow of the drain {Rockvjood
V. Wilson, 11 Gush. 221), and an overflow, caused by a frost more
severe than had been known for twenty-five years, bursting the defend-
ant's pipes, was held to afford no ground of action. Blyth v. Pi^o-
prietors, etc., 11 Exch. 781.

A man may make an excavation on his own land, and leave it un-
guarded without incurring any liability to strangers passing over the land
who may be injured by falling into it {Bolch v. Smith, 7 Hurlst. ^i;
N. 736 ; Jxnight v. Alert, 6 Penn. St. 472 ; Binks v. South York-
shire Railway Co., 3 Best & Sm. 244 ; Rowland v. Vincent, 10 Mete.



694 NEGLIGENCE.

[Mass.] 371), unless the excavation is made so near to a public road or
■^av as to constitute a public nuisance. Hounsell v. Smyth, 7 C. B.
(X. S.) 731 ; Yale v. Blus, 50 Barb. 358. And the occupant of prem-
ises was held not to be liable to one not invited thereon, and who,
while on the premises, was injured by falling into a vat of boiling liquor
used bj the defendant in the usual and customary way. Victory v.
Baler] 67 N. Y. (22 Sick.) 366. See, also, Pierce v. Whitcomh, 48 Yt.
127 ; S. C, 21 Am. Rep. 120. But see Hydraulic ^Yorks Co. v. Orr,
83 Penn. St. 332. It is, however, regarded as culpable negligence for
the owner of land to leave a pit or other excavation in such an un-
guarded state as to injure a person having a right to be upon the land,
and using that right with ordinary care. Williajns v. Groucott, 4 Best
& Sm. 149 ; Chapman v. Rothwell, 1 El. Bl. & El. 168. And if the
owner places a spring gun on his premises, or does other like acts im-
minently dangerous to human life, and designed to endanger it, he
may be held responsible even to a trespasser. Bird v. Holhrook, 4
Bing. 628 ; Ilooher v. Miller, 37 Iowa, 613 ; S. C, 18 Am. Eep. 18 ;
Chray v. Comhs, 7 J. J. Marsh. (Ky.) 478 ; State v. Moore, 31 Conn.
479. But a house may be thus protected from burglars. Id. And in
England, it has long been usual for the proprietor of land to place
spring guns and other deadly engines upon an inclosure, so concealed
as not to be seen, to wound, kill or destroy any man or animal that
conies upon the place ; and it is there held that if proper notice be
given, he is justified in inflicting any injury on men or animals, tres-
passing on the grounds, even to the taking of life. Ilott v. Wilkes, 3
Barn, cfe Aid. 304. See Johnson v. Patterson, 14 Conn. 1.

There is held to be no implied obligation between the owners of dis-
tinct parts of a building, which will enable either to maintain an action
against the other for mere refusal and neglect to repair his tenement,
whereby the plaintiff's part is injured. Pierce v. Dyer, 109 Mass.
374; 12 Am. Rep. 716.

§ 19. Sheriff's. A sheriff, or other like officer, charged with the exe-
cution of process, is liable in a civil action to a person injured by his
neglect to exercise due diligence in the service thereof, ^yhite\. Wil-
cox, 1 Conn, 347 ; Moulton v. Jose, 25 Me. 76 ; Kinnard v. Willmore,
2 Heisk. (Tenn.) 619 ; Ransom v. Ilalcott, 9 IIow. (N. Y.) 119 ; S. C,
IS Barb. 56. And a sherift' is liable for all official neglect or miscon-
duct of his deputy, and also for his acts, not required by law, where he
assumes to act under color of office. Camphell v. Phelps, 17 Mass. 244 ;
Mclntyre v. Trumhull, 7 Johns. 35. But he is so liable only while
the relation between them exists {Blake v. Shaw, 7 Mass. 505), and he
is not responsible for the neglect of any act or duty which the law



NEGLIGENCE. 695

does not require the deputy officer to perform. Clute v, Goodell, 2
McLean (C. C), 193 ; Harrirnan v. Wilkins, 20 Me. 93. And if a
deputy sheriff has authority from the creditor to manage an execution
according to his discretion, the sheriff is discharged from his liability
for the official neglect of such deputy. FUichers v. Bradley^ 12 Vt.
22 ; Samuel v. Commonwealth, 6 Monr. (Ky.) 173. And see Root v.
Wagner, 30 N. Y. (13 Tiff.) 9.

An action would not lie against a sheriff, at common law, for not
returning an execution or other writ {Commonwealth v. McCoy, 8
Watts, 153 ; Clark v. Foxcroft, 6 Me. 296) ; but in most of the States
such an action is given by statute, and the sheriff is made prima facie
liable for the whole debt, if he neglects to return the writ within the
return day. McGregor v. Broion, 5 Pick. 170; Swezey v. Lott, 21 N.
Y. (7 Smith) 481 ; Moore v. Fli/yd, 4 Oreg. 101. So, if the sheriff
make a false return, he is prima facie liable to the creditor for the
amount of the debt with interest {Goodrich \. Starr, 18 Yt. 227; 3fc-
Arthur V. Pease, 46 Barb. 423) ; and he is liable to any one else,
though not a party to the suit, who is damaged by the return. Cozine
V. Walter, 55 N. Y. (10 Sick.) 304. And in an action against the sheriff
for a f^ilse return, it does not lie with him to urge that the plaintiff's
judgment is invalid under the bankrupt act, and that, therefore, no act
done under, or by color of it coukl inure to the plaintiff's benefit.
Watson V. Brennan, 7 Jones & Sp. (N. Y.) 81.

If a sheriff keeps goods levied on in an unsafe place, or exposes them
to destruction, he is liable for the damage . sustained. Conover v.
Gate wood, 2 A. K. Marsh. (Ky.) 568; Jenner v. Joliffe,^ Johns. 381.
But he is not an insurer of the goods {Price v. Stone, 49 Ala. 543) ;
and is only liable for the same degree of diligence as an ordinary bailee
for hire. Bridges v. Perry, 14 Vt. 262 ; Moore v. Westervelt, 27 N".
Y. (13 Smith) 234 ; Kendall v. Morse, 43 N. H. 553. But see Ilart-
lieb V. McLane, 44 Penn. St. 510 ; Browning v. Jlanfo7'd, 5 Denio,
586. A sheriff, who has levied an execution upon personal property,
and has been deprived of the possession thereof by writ of replevin
at the suit of a claimant, is not liable for the debt and damages on the
motion of the judgment creditor, although the latter has given him a
bond of indemnity. Sioain v. Alcorn, 50 Miss. 320.

A sheriff who seizes property under an execution, and does not sell
it within a reasonable time, is liable, for his non -performance, to the
party injured, uidess he has a legal excuse. State v. Herod, 6 Blackf
(Ind.) 444 ; Jacols v. Humphrey, 2 Cr, & M. 413 ; Fisher v. Van-
7neter, 9 Leigh (Ya.), 18. The extent of the liability for failing to sell is
the value of the property, if it is finally lost and the defendants are



696 NEGLIGENCE.

insolvent, or if the only solvent defendant is released bj the laches of
the officer. Royse v. Reynolds, 10 Bush (Ky.), 286.

The sheriff is bound to exercise reasonable care and judgment in the
management of his sales. His duty is to make the money on the exe-
cution, if by fair judgment and skill it can be done according to the
modes provided by law. And although his discretion should be liber-
ally considered in the absence of bad faith, yet he is responsible for
a clear neglect of its proper exercise, according to the measure stated.
VrrlijU V. Child, L. E., 1 Exch. 358; Todd v. Iloagla/tid, 36 N. J.
Law, 352.

Wliere a sheriff, who, at the expiration of his term of office, has in
his hands process not fully executed, dies before the complete execution
thereof, his late under-sheriff becomes substituted in his j)li^ce, and
assumes all his duties and liabilities in respect'to such process; and for
moneys collected by him, by virtue thereof, he is personally liable.
JS^ewman v. Beckwlth, 61 N. Y*. (16 Sick.) 205.

As to the liability of the sheriff for an escape, see ante, Vol. 3, tit.
Escape.

§ 20. Telegraphs. The liability of telegraph companies for negli-
gence has been said to rest entirely upon contract. Playford v. United
Kingdom Telegraph Co., L. E.., 4 Q. B. 706. But the better opinion
is, that there is an obligation resting upon them independently of any
contract, and which arises from the public nature of their employment.
See Western Union Telegraph Co. v. Careio, 15 Mich. 525 ; Parks v.
Alta California Telegraph Co., 13 Cal. 422 ; New York, etc., Tele-
graph Co. V. Dryhurg, 35 Penn. St. 298. The business, though pur-
sued for reward, is designed for the general convenience of the public ;
and like the business of common carriers, the interests of the public
are so largely incorporated with it, that it differs from ordinary bail-
ments which parties are at liberty to enter into or not, as they please.
DeRutte v. New York, etc., Telegraph Co., 30 How. (N. Y.) 403 ; S.
S., 1 L)aly, 547. Telegra})h companies in one sense may be called
common carriers, as they are engaged in a public employment, and are
bound to transmit, for all persons, messages delivered to them for that
})uri)ose. But tlie analogy between common carriers of goods and
cijmmon carriers of messages is not perfect, and their responsibility
differs in a manner corresponding to the difference in the nature of the
services they perfijrm. Aiken v. Telegraph Co., 5 So. Car. 358; Grin-
nell V. Western Union Tel. Co., 113 Mass. 299; S. C, 18 Am. Rep.
485. Tlie nde is stated to be, that, in the al)scnce of any special con-
tract limiting or regulating the liability of the latter, they do not insure
the safe and accurate transmission of messages, but they are l)ound to



NEGLIGENCE. G97

transmit tlieiii with care and diligence adequate to the business which
they undertake, and if they fail in such care and diligence, they be-
come responsible. Breei<e v. U. S. Tel. Co., 48 N. Y. (3 Sick.) 132 ;
S. C, 8 Am. Rep. 526; Sweetlaiid v. Illinois, etc., Tel. Co., 27 Iowa,
433; S. C, 1 Am. Rep. 285; Ellis v. Am. Tel. Co., 13 Allen, 226;
Washington, etc., Tel. Co. v. Ilohson, 15 Gratt. (Va.) 122.

A telegraph company, holding itself out to the public as ready and
willing to transmit messages, pledges to the public the use of instru-
ments proper for the purpose, and that degree of skill and care adequate
to'accomplish the object proposed, and in case of failure in any of these
respects it is undoubtedly liable for the damages resulting. Bartlett v.
Western Union Tel. Co., 62 Me. 209 ; S. C, 16 Am. Rep. 437. Cir-
cumstances in the nature of the instrumentality employed, Avhich in a
particular case prevent the proper accomplishment of the undertaking,
such as a thunder storm, or the sickness of a skilled operator, may, how-
ever, be a sufficient excuse for delay ; but a mistake, such as translat-
ing an order for " sacks " of salt as an order for " casks " of salt,
is to be regarded as the result of negligence for which the com-
pany are liable. Leonard v. Nev) York, etc., Tel. Co., 41 N.
Y. (2 Hand) 544; S. C, 1 Am. Rep. 446. See, also, Buf-
hury v. Tel. Co., 3 Phil. (Penn.) 408. And in general, where the
terms of a message sent by telegraph are seriously changed, and the
name of the sender entirely disfigured, either by the transmission or
the copying, it will import negligence on its face. Western Union
Tel. Co. Y.MceJc, 49 Ind. 53.

When a telegraph company contracts to deliver market reports, it
binds itself to procure and furnish correct reports, and is responsible
for the loss occasioned by any mistake in them. If the company under-



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 91 of 107)