INDEX

221. Birmingham Light & Power Co. v. Jones, 146 Ala. 277; Indianapolis R. Co. v. Boettcher, 131 Ind. 82 Accord.

222. Southern R. Co. v. Svendsen, 13 Ariz. 111; Kramm. v. Stockton R. Co., 10 Cal. App. 271; Nehring v. Connecticut Co., 86 Conn. 109; Central R. Co. v. Moore, 5 Ga. App. 562; Heidenreich v. Bremner, 260 Ill. 439; Kansas R. Co. v. Whipple, 39 Kan. 531; Schoolcraft v. Louisville R. Co., 92 Ky. 233; La Barge v. Pere Marquette R. Co., 134 Mich. 139; St. Louis R. Co. v. Ault, 101 Miss. 341; Brendle v. Spencer, 125 N. C. 474; Goodwin v. Atlantic R. Co., 82 S. C. 321; Bolin v. Chicago R. Co., 108 Wis. 333 Accord.

223. Carrington v. Louisville R. Co., 88 Ala. 472; Wood v. Los Angeles R. Co., 172 Cal. 15; Rowen v. New York R. Co., 59 Conn. 364; Florida R. Co. v. Hirst, 30 Fla. 1; Louisville R. Co. v. McCoy, 81 Ky. 403; Davis v. Saginaw Bay R. Co., 191 Mich. 131 Accord. Compare Magar v. Hammond, 171 N. Y. 377.

“Mere negligence which gives a cause of action is the doing of an act, or the omission to act, which results in damage, but without intent to do wrong or cause damage. To constitute a wilful injury, there must be design, purpose, intent to do wrong and inflict the injury. Then there is that reckless indifference or disregard of the natural or probable consequence of doing an act, or omission of an act, designated whether accurately or not, in our decisions, as ‘wanton negligence,’ to which is imputed the same degree of culpability and held to be equivalent to wilful injury. A purpose or intent to injure is not an ingredient of wanton negligence. Where either of those exist, if damage ensues, the injury is wilful. In wanton negligence, the party doing the act, or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury. These are the distinctions between simple negligence, wilful injury, and that wanton negligence which is the equivalent of wilful injury, drawn and applied in our decisions. A mere error of judgment as to the result of doing an act or the omission of an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, but cannot rise to the degree of wanton negligence or wilful wrong....” Coleman, J., in Birmingham R. Co. v. Bowers, 110 Ala. 328, 331.

“The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without further averment, falls very far short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it cannot be said to have been intentionally done; and unless an act is done, or omitted to be done, under circumstances and conditions known to the person, that his conduct is likely to, or probably will result in injury, and through reckless indifference to consequences, he consciously and intentionally does a wrongful act, or omits an act, the injury cannot be said to be wantonly inflicted. These principles have been frequently declared by this court....” Coleman, J., in Memphis R. Co. v. Martin, 117 Ala. 367, 382.

Central R. Co. v. Newman, 94 Ga. 560; Lafayette R. Co. v. Adams, 26 Ind. 76; Chicago R. Co. v. Bills, 118 Ind. 221; Alger v. Duluth-Superior Traction Co., 93 Minn. 314; Jensen v. Denver R. Co., 44 Utah, 100; Boggess v. Chesapeake R. Co., 37 W. Va. 297; Astin v. Chicago R. Co., 143 Wis. 477 Contra. But see Jaggard, J., dissenting, in Anderson v. Minneapolis R. Co., 103 Minn. 224, 230.

“For a motorman to be inattentive to the way ahead of him is so palpably negligent that it partakes of the nature of a reckless and wanton act. Therefore a defendant in an action of this character will not be heard to say that its motorman did not see the situation of the injured person where it was open to his view nor did not realize the peril where the indications would have disclosed it to any reasonable mind. Charged with the knowledge of the peril of another that could have been obtained by the use of ordinary care, a failure on the part of a motorman to make every reasonable effort to avoid injuring the endangered person would be in the highest degree wrongful, since it would be negligence committed with the knowledge that another certainly and immediately would be injured thereby. The principles of right and justice do not tolerate the idea that the negligence of the person imperilled involved in his act of placing himself in position to be injured without giving proper heed to his own safety can coöperate with the negligence of one who comprehending his danger or being in a position to comprehend it by the use of ordinary care and having at hand the means and opportunity of avoiding it, fails to reasonably employ them and by such failure inflicts an injury. Such negligence engrosses the entire field of culpability and eliminates contributory negligence as a factor in the production of the injury. It logically follows from the principles stated that the issue of negligence in the performance of the humanitarian duty must be governed by the rules applicable to ordinary negligence. The determinative question in all such cases is, did the operators of the car use ordinary care to ascertain the peril of the plaintiff and to avoid the injury after they discovered it or should have discovered it? In some of the decisions of the Supreme Court the idea appears to be expressed that in order to find a defendant guilty of a breach of the humanitarian rule the elements of wantonness and wilfulness must appear in its conduct, but as we have attempted to show the mere failure to observe ordinary care in situations of this character is of itself a wanton act since it is abhorrent not only to fundamental principles of law but to the dictates of common humanity. The views expressed are supported by the weight of authority in this state, including the most recent decisions of the Supreme and Appellate courts....” Johnson, J., in Cole v. Metropolitan R. Co., 121 Mo. App. 605, 611.

224. Only a portion of the opinion is printed.

225. Statement of facts abridged. Arguments omitted. Only such portion of the two opinions of Dixon, C. J., are given as relate to one question. The dissenting opinion of Paine, J., is omitted.

226. Vaughan v. Taff Vale R. Co., 3 H. & N. 743; Leroy Fibre Co. v. Chicago R. Co., 232 U. S. 340; Flynn v. San Francisco R. Co., 40 Cal. 14; Fitch v. Pacific R. Co., 45 Mo. 322; Salmon v. Delaware R. Co., 38 N. J. Law, 5; Philadelphia R. Co. v. Schultz, 93 Pa. St. 341 Accord. But see Collins v. New York R. Co., 5 Hun, 499.

In Leroy Fibre Co. v. Chicago R. Co., supra, Holmes, J., (concurring in the result) said:

“If a man stacked his flax so near to a railroad that it obviously was likely to be set fire to by a well-managed train, I should say that he could not throw the loss upon the road by the oscillating result of an inquiry by the jury whether the road had used due care. I should say that although of course he had a right to put his flax where he liked upon his own land the liability of the railroad for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the train. I take it that probably many, certainly some, rules of law based on less than universal considerations are made absolute and universal in order to limit those over-refined speculations that we all deprecate, especially where such rules are based upon or affect the continuous physical relations of material things. The right that is given to inflict various inconveniences upon neighboring lands by building or digging, is given, I presume, because of the public interest in making improvement free, yet it generally is made absolute by the common law. It is not thought worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to motives. A defect in the highway, declared a defect in the interest of the least competent travellers that can travel unattended without taking legal risks, or in the interest of the average man, I suppose to be a defect as to all. And as in this case the distinction between the inevitable and the negligent escape of sparks is one of the most refined in the world, I think that I must be right so far, as to the law in the case supposed.

If I am right so far, a very important element in determining the right to recover is whether the plaintiff’s flax was so near to the track as to be in danger from even a prudently managed engine. Here certainly, except in a clear case, we should call in the jury. I do not suppose that any one would call it prudent to stack flax within five feet of the engines or imprudent to do it at a distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact measure, as it has tended to in other instances; (Martin v. District of Columbia, 205 U. S. 135, 139) but at present I take it that if the question I suggest be material we should let the jury decide whether seventy feet was too near by the criterion that I have proposed. Therefore, while the majority answer the first question, No, on the ground that the railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso that it was to be answered No, in case the jury found that the flax, although near, was not near enough to the trains to endanger it if the engines were prudently managed, or else I should decline to answer the question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized. See Nash v. United States, 229 U. S. 373, 376, 377. Negligence is all degree—that of the defendant here degree of the nicest sort; and between the variations according to distance that I suppose to exist and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.”

Where inflammable matter is brought upon land and kept near the track, see Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572; Southern R. Co. v. Wilson, 138 Ala. 510; Railway Co. v. Fire Ass’n, 55 Ark. 163; Cleveland R. Co. v. Scantland, 151 Ind. 488; Boston Excelsior Co. v. Bangor, 93 Me. 52; Peter v. Chicago R. Co., 121 Mich. 324; Kalbfleisch v. Long Island R. Co., 102 N. Y. 520; Southern R. Co. v. Patterson, 105 Va. 6, in accord with the principal case. See also Ross v. Boston R. Co., 6 All. 87.

Macon R. Co. v. McConnell, 27 Ga. 481; Coates v. Missouri R. Co., 61 Mo. 38 (but see Mo. Rev. St. 1909, § 3151); Murphy v. Chicago R. Co., 45 Wis. 222 Contra.

Compare Alabama R. Co. v. Fried, 81 Miss. 314; Louisville R. Co. v. Short, 110 Tenn. 713; San Antonio R. Co. v. Home I. Co., (Tex. Civ. App.) 70 S. W. 999.

227. Statement of case abridged. Arguments omitted.

228. 116 U. S. 366.

229. Little v. Hackett, 116 U. S. 366; Baltimore R. Co. v. Friel, (C. C. A.) 77 Fed. 126; Georgia R. Co. v. Hughes, 87 Ala. 610; Little Rock R. Co. v. Harrell, 58 Ark. 454; Thompson v. Los Angeles R. Co., 165 Cal. 748; Fujise v. Los Angeles R. Co., 12 Cal. App. 207; Woodley v. Baltimore R. Co., 19 D. C. 542; Baltimore R. Co. v. Adams, 10 App. D. C. 97; Chicago R. Co. v. Hines, 183 Ill. 482; Chicago R. Co. v. Leach, 215 Ill. 184; Pittsburgh R. Co. v. Spencer, 98 Ind. 186; Miller v. Louisville R. Co., 128 Ind. 97; Chicago R. Co. v. Groves, 56 Kan. 601; Louisville R. Co. v. Case, 9 Bush, 728; Louisville R. Co. v. Molloy, 122 Ky. 219; Holzab v. New Orleans R. Co., 38 La. Ann. 185; Roby v. Kansas City R. Co., 130 La. 880; Consolidated Gas Co. v. Getty, 96 Md. 683; Cuddy v. Horn, 46 Mich. 596; Galloway v. Detroit Ry., 168 Mich. 343; Flaherty v. Minneapolis R. Co., 39 Minn. 328; Colton v. Willmar R. Co., 99 Minn. 366; Gulf R. Co. v. Barnes, 94 Miss. 484; Becke v. Missouri R. Co., 102 Mo. 544; Sluder v. St. Louis Transit Co., 189 Mo. 107; Bennett v. New Jersey R. Co., 36 N. J. Law, 225; New York R. Co. v. Steinbrenner, 47 N. J. Law, 161; Colegrove v. New York R. Co., 20 N. Y. 492; Webster v. Hudson R. Co., 38 N. Y. 260; Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470; Lewis v. Long Island R. Co., 162 N. Y. 52; Ward v. International R. Co., 206 N. Y. 83; Crampton v. Ivie, 124 N. C. 591; Covington Transfer Co. v. Kelly, 36 Ohio St. 86; Chickasha R. Co. v. Marshall, 43 Okl. 192; Dean v. Pennsylvania R. Co., 129 Pa. St. 514; Bunting v. Hogsett, 139 Pa. St. 363; Markham v. Houston Navigation Co., 73 Tex. 247; Gulf R. Co. v. Pendry, 87 Tex. 553; New York R. Co. v. Cooper, 85 Va. 939; Croft v. Northwestern Steamship Co., 20 Wash. 175 Accord.

230. Statement abridged. Greater part of opinion omitted.

231. Elyton Land Co. v. Mingea, 89 Ala. 521; Birmingham R. Co. v. Baker, 132 Ala. 507; Hot Springs R. Co. v. Hildreth, 72 Ark. 572; Farley v. Wilmington R. Co., 3 Pennewill 581; Porter v. Jacksonville Electric Co., 64 Fla. 409; Roach v. Western R. Co., 93 Ga. 785; West Chicago R. Co. v. Dougherty, 209 Ill. 241; Nonn v. Chicago R. Co., 232 Ill. 378; Yeates v. Illinois R. Co., 241 Ill. 205; Cincinnati R. Co. v. Cook, 44 Ind. App. 303; Larkin v. Burlington R. Co., 85 Ia. 492; Withey v. Fowler, 164 Ia. 377; City v. Hatch, 57 Kan. 57; Williams v. Withington, 88 Kan. 809; City v. Bott, 151 Ky. 578; State v. Boston R. Co., 80 Me. 430; Denis v. Lewiston R. Co., 104 Me. 39; Philadelphia R. Co. v. Hogeland, 66 Md. 149; United Railways v. Biedler, 98 Md. 564; Randolph v. O’Riordan, 155 Mass. 331; McKernan v. Detroit R. Co., 138 Mich. 519; Follman v. City, 35 Minn. 522; Dickson v. Missouri R. Co., 104 Mo. 491; Petersen v. St. Louis Transit Co., 199 Mo. 331; Farrar v. Metropolitan R. Co., 249 Mo. 210; Loso v. County, 77 Neb. 466; Noyes v. Town, 64 N. H. 361; Noonan v. Consolidated Traction Co., 64 N. J. Law, 579; Dyer v. Erie R. Co., 71 N. Y. 228; Geary v. Metropolitan R. Co., 84 App. Div. 514; Robinson v. Metropolitan R. Co., 91 App. Div. 158; Ward v. Brooklyn R. Co., 119 App. Div. 487; Morris v. Metropolitan R. Co., 63 App. Div. 78; Terwilliger v. Long Island R. Co., 152 App. Div. 168; Kammerdiener v. Rayburn, 233 Pa. St. 328; Sieb v. Central Traction Co., 47 Pa. Super. Ct. 228; Wilson v. Puget Sound R. Co., 52 Wash. 522 Accord.

See McLaughlin v. Pittsburgh R. Co., 252 Pa. St. 32.

232. Davis v. Chicago R. Co., (C. C. A.) 159 Fed. 10; Rebillard v. Minneapolis R. Co., 216 Fed. 503; Ewans v. Wilmington R. Co., 7 Pennewill 458; Brannen v. Kokomo Road Co., 115 Ind. 115; Holden v. Missouri R. Co., 177 Mo. 456; Brickell v. New York R. Co., 120 N. Y. 290; Caminez v. Brooklyn R. Co., 127 App. Div. 138; Doctoroff v. Metropolitan R. Co., 55 Misc. 215; Southern R. Co. v. Jones, 118 Va. 685; Wilson v. Puget Sound R. Co., 52 Wash. 522; Warth v. Jackson County Court, 71 W. Va. 184 Accord.

See Atlantic R. Co. v. Ironmonger, 95 Va. 625.

233. City v. Thuis, 28 Ind. App. 523; Bush v. Union R. Co., 62 Kan. 709; Yarnold v. Bowers, 186 Mass. 396; Peabody v. Haverhill R. Co., 200 Mass. 277; Lundergan v. New York R. Co., 203 Mass. 460; Fogg v. New York R. Co., 223 Mass. 444; Marsh v. Kansas City R. Co., 104 Mo. App. 577; Meenagh v. Buckmaster, 26 App. Div. 451; Cunningham v. Erie R. Co., 137 App. Div. 506 Accord.

Driver known to be incompetent, see: Cahill v. Cincinnati R. Co., 92 Ky. 345.

Passenger unknown to driver, see: Cincinnati R. Co. v. Wright, 54 Ohio St. 181.

234. Pyle v. Clark, (C. C. A.) 79 Fed. 744; Dale v. Denver Tramway Co., (C. C. A.) 173 Fed. 787; North Alabama Traction Co. v. Thomas, 164 Ala. 191; Lininger v. San Francisco R. Co., 18 Cal. App. 411; Tonsley v. Pacific Electric Co., 166 Cal. 457; Parmenter v. McDougall, 172 Cal. 306; Denver Tramway Co. v. Armstrong, 21 Col. App. 640; Sampson v. Wilson, 89 Conn. 707; Metropolitan R. Co. v. Powell, 89 Ga. 601; Southern R. Co. v. King, 128 Ga. 383: Chicago R. Co. v. Condon, 121 Ill. App. 440; Dudley v. Peoria R. Co., 153 Ill. App. 619; Town v. Musgrove, 116 Ind. 121; Lake Shore R. Co. v. Boyts, 16 Ind. App. 640; Nisbet v. Town, 75 Ia. 314; Hubbard v. Bartholomew, 163 Ia. 58; Corley v. Atchison R. Co., 90 Kan. 70; Bevis v. Vanceburg Tel. Co., 121 Ky. 177; Illinois R. Co. v. Wilkins, 149 Ky. 35; Sykes v. Maine R. Co., 111 Me. 182; United R. Co. v. Cram, 123 Md. 332; Chadbourne v. Springfield R. Co., 199 Mass. 574; Ingalls v. Lexington R. Co., 205 Mass. 73; Alabama R. Co. v. Davis, 69 Miss. 444; Mittelsdorfer v. West Jersey R. Co., 77 N. J. Law, 698; Weber v. Philadelphia R. Co., 88 N. J. Law, 398; Robinson v. New York R. Co., 66 N. Y. 11; Noakes v. New York R. Co., 121 App. Div. 716; Zimmerman v. Union R. Co., 28 App. Div. 445; Mack v. Town, 98 App. Div. 577; Jerome v. Hawley, 147 App. Div. 475; Duval v. Atlantic R. Co., 134 N. C. 331; Ouverson v. City, 5 N. D. 281; Toledo R. Co. v. Mayers, 93 Ohio St. 304; Tonseth v. Portland R. Co., 70 Or. 341; Little v. Central Tel. Co., 213 Pa. St. 229; Walsh v. Altoona R. Co., 232 Pa. St. 479; Wachsmith v. Baltimore R. Co., 233 Pa. St. 465; Trumbower v. Lehigh Transit Co., 235 Pa. St. 397; Hermann v. Rhode Island Co., 36 R. I. 447; Latimer v. County, 95 S. C. 187; Turnpike Co. v. Yates, 108 Tenn. 428; Missouri R. Co. v. Rogers, 91 Tex. 52; Lochhead v. Jensen, 42 Utah 99; Atwood v. Utah R. Co., 44 Utah 366 Accord.

Kneeshaw v. Detroit R. Co., 169 Mich. 697; Colborne v. United R. Co., 177 Mich. 139; Granger v. Farrant, 179 Mich. 19 (but compare Hampel v. Detroit R. Co., 138 Mich. 1); Whittaker v. City, 14 Mont. 124; Omaha R. Co. v. Talbot, 48 Neb. 627; Prideaux v.. City, 43 Wis. 513; Otis v. Town, 47 Wis. 422; Ritger v. City, 99 Wis. 190; Lightfoot v. Winnebago Traction Co., 123 Wis. 479; Lauson v. Town, 141 Wis. 57 Contra.

As to whether the negligence of an agent or servant will be imputed to a principal or employer not personally culpable, see also: Siegel v. Norton, 209 Ill. 201; Moore v. Stetson, 96 Me. 197; Bjbjian v. Woonsocket Rubber Co., 164 Mass. 214; Philip v. Heraty, 135 Mich. 446; Fero v. Buffalo R. Co., 22 N. Y. 209.

Contributory negligence of agent or servant in sole charge of the property injured, see: Kennedy v. Alton Traction Co., 180 Ill. App. 146; Toledo R. Co. v. Goddard, 25 Ind. 185; Louisville R. Co. v. Stommel, 126 Ind. 35; Young v. County, 137 Ia. 515; Dunn v. Old Colony R. Co., 186 Mass. 316; La Riviere v. Pemberton, 46 Minn. 5; Johnson v. Atchison R. Co., 117 Mo. App. 308; Page v. Hodge, 63 N. H. 610; Smith v. New York R. Co., 4 App. Div. 493; Puterbaugh v. Reasor, 9 Ohio St. 484; Hawley v. Sumpter R. Co., 49 Or. 509. Compare Gress v. Philadelphia R. Co., 228 Pa. St. 482 (care of injured child delegated to another child, whose negligence contributed).

As to when negligence of the servant is imputed to the master, see also: Sims v. Macon R. Co., 28 Ga. 93 (slave); Read v. City, 115 Ga. 366; Potter v. Ft. Wayne Traction Co., 43 Ind. App. 427; City v. Bott, 151 Ky. 578; Markowitz v. Metropolitan R. Co., 186 Mo. 350; Moon v. St. Louis Transit Co., 237 Mo. 425; Reed v. Metropolitan R. Co., 58 App. Div. 87; Wood v. Coney Island R. Co., 133 App. Div. 270; Crampton v. Ivie, 126 N. C. 894. Compare Snyder Ice Co. v. Bowron, (Tex. Civ. App.) 156 S. W. 550.

Whether husband’s negligence will be imputed to the wife, see: McFadden v. Santa Ana R. Co., 87 Cal. 464; Basler v. Sacramento Gas Co., 158 Cal. 514; Joliet v. Seward, 86 Ill. 402; Yahn v. Ottumwa, 60 Ia. 429 (see also Nesbit v. Garner, 75 Ia. 314; Willfong v. Omaha R. Co., 116 Ia. 548); Denton v. Missouri R. Co., 90 Kan. 51; Livingston v. Philley, 155 Ky. 224; Ploetz v. Holt, 124 Minn. 169; Moon v. St. Louis Transit Co., 237 Mo. 425; Johnson v. Springfield Traction Co., 176 Mo. App. 174; Hajsek v. Chicago R. Co., 68 Neb. 539, 5 Neb. Unoff. 67; Pennsylvania R. Co. v. Goodenough, 55 N. J. Law, 577; Horandt v. Central R. Co., 78 N. J. Law, 190; Carlisle v. Sheldon, 38 Vt. 440.

Imputed negligence as between fellow servants, see: Nonn v. Chicago R. Co., 232 Ill. 378; Ford v. Hine, 237 Ill. 463; Paducah Traction Co. v. Sine, (Ky.) 111 S. W. 356; City v. Heitkemper, 169 Ky. 167; Earp v. Phelps, 120 Md. 282; Siever v. Pittsburgh R. Co., 252 Pa. St. 1; Landry v. Great Northern R. Co., 152 Wis. 379; Sommerfeld v. Chicago R. Co., 155 Wis. 102.

Whether bailor barred by contributory negligence of bailee, see: Svea Ins. Co. v. Vicksburgh R. Co., 153 Fed. 774; Henderson v. Chicago R. Co., 170 Ill. App. 616; Welty v. Indianapolis R. Co., 105 Ind. 55; Illinois R. Co. v. Sims, 77 Miss. 325; Spelman v. Delano, 177 Mo. App. 28; Forks Township v. King, 84 Pa. St. 230; Gibson v. Bessemer R. Co., 226 Pa. St. 198; Texas R. Co. v. Tankersley, 63 Tex. 57.

Consignor and consignee, see McCarthy v. Louisville R. Co., 102 Ala. 193.

Lessor and lessee, see Higgins v. Los Angeles Gas Co., 159 Cal. 651; Contos v. Jamison, 81 S. C. 488.

235. See Alabama R. Co. v. Hanbury, 161 Ala. 358; Louisville R. Co. v. Armstrong, 127 Ky. 367; Beaucage v. Mercer, 206 Mass. 492; Ward v. Meads, 114 Minn. 18; Schron v. Staten Island R. Co., 16 App. Div. 11; Christopherson v. Minneapolis R. Co., 28 N. D. 128; Wentworth v. Town, 90 Vt. 60; Washington R. Co. v. Zell, 118 Va. 755.

According to the decision in Shindelus v. St. Paul City R. Co., 80 Minn. 364, if any of the young men of the party in the Koplitz case had sued the city, the negligence of Gibbons would have been imputed to them.

Compare Laurence v. Sioux City, 172 Ia. 320; Scheib v. New York R. Co., 115 App. Div. 578; Kansas City R. Co. v. Durrett, (Tex. Civ. App.) 187 S. W. 427.

236. Statement abridged. Arguments omitted; also portions of opinion.

237. Chicago R. Co. v. Kowalski, (C. C. A.) 92 Fed. 310; Pratt Coal Co. v. Brawley, 83 Ala. 371; St. Louis R. Co. v. Rexroad, 59 Ark. 180; Daley v. Norwich R. Co., 26 Conn. 591; Jacksonville Electric Co. v. Adams, 50 Fla. 429; Ferguson v. Columbus R. Co., 77 Ga. 102; Chicago R. Co. v. Wilcox, 138 Ill. 370; Evansville v. Senhenn, 151 Ind. 42 (overruling earlier cases contra); Ives v. Welden, 114 Ia. 476; Union R. Co. v. Young, 57 Kan. 168 (older cases contra); South Covington R. Co. v. Herrklotz, 104 Ky. 400; Westerfield v. Levis, 43 La. Ann. 63; Shippy v. Au Sable, 85 Mich. 280; Mattson v. Minnesota R. Co., 95 Minn. 477 (overruling older cases contra); Westbrook v. Mobile R. Co., 66 Miss. 560; Winters v. Kansas City R. Co., 99 Mo. 509; Neff v. City, 213 Mo. 350; Huff v. Ames, 16 Neb. 139; Warren v. Manchester R. Co., 70 N. H. 352; Bottoms v. Seaboard R. Co., 114 N. C. 699; Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399; Erie R. Co. v. Schuster, 113 Pa. St. 412; Whirley v. Whiteman, 1 Head, 610; Galveston R. Co. v. Moore, 59 Tex. 64; Robinson v. Cone, 22 Vt. 213; Norfolk R. Co. v. Ormsby, 27 Grat. 455; Dicken v. Liverpool Coal Co., 41 W. Va. 511 Accord.

Meeks v. So. Pac. R. Co., 52 Cal. 602; O’Brien v. McGlinchy, 68 Me. 552; Baltimore R. Co. v. McDonnell, 43 Md. 534; Wright v. Malden R. Co., 4 All. 283; Cotter v. Lynn R. Co., 180 Mass. 145 (but see Mass. Acts 1914, c. 553); Hartfield v. Roper, 21 Wend. 615; Parishi v. Eden, 62 Wis. 272; Kuchler v. Milwaukee Electric Co., 157 Wis. 107 Contra.

As to the limits of the rule in the jurisdictions that follow Hartfield v. Roper, see McNeil v. Boston Ice Co., 173 Mass. 570; O’Brien v. McGlinchy, 68 Me. 552; Ihl v. Forty-Second Street Ferry, 47 N. Y. 317; McGarry v. Loomis, 63 N. Y. 104.

238. Savannah Electric Co. v. Dixon, (Ga.) 89 S. E. 373; Smith v. Marion Bottle Co., 84 Kan. 551 Accord.

239. At common law, no civil action could be maintained for wrongfully causing the death of a human being. Following the English act of 1846, known as Lord Campbell’s Act (9 & 10 Vict. c. 93) statutes in all jurisdictions now provide an action for the benefit of specified relatives of a deceased person against one who tortiously caused his death. In Tiffany, Death by Wrongful Act, 2 Edition, 1913, these statutes are printed in full in the appendix. The book also contains an analytical table of the statutes.

Sometimes the relatives are authorized to sue in person; while in other statutes it is provided that the action shall be brought by an administrator of the estate of the deceased. But, even under the latter class of statutes, the sum recovered does not usually become a part of the general assets of the estate available for the payment of creditors (unless, perhaps, in the absence of any relatives). In some instances the statute provides that an action can be brought only in case the person killed could have maintained an action if death had not ensued. But, even where the statute does not contain an explicit provision of the above nature, the courts generally hold that contributory negligence on the part of the deceased bars the statutory action. The question remains: Will the contributory negligence of the sole beneficiary bar the action, either where he is personally plaintiff, or where he is plaintiff in his capacity as administrator of the deceased, or where the plaintiff is a third person suing in the capacity of administrator?

The statutes of a few states may, perhaps, be construed as proceeding upon the theory that a right of action is vested in the deceased, and that provision is now made for the survival of such right of action.

240. Wymore v. Mahaska County, 78 Ia. 396. The material provisions of the statute involved in that case were:—

Section 3730, McClain’s Annotated Code of Iowa. All causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to the same.

Section 3731.... When a wrongful act produces death, the damages shall be disposed of as personal property belonging to the estate of the deceased, except that if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment of debts.

Section 3732. The actions contemplated in the two preceding sections may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the same time it did to the deceased if he had survived....

Section 3761. A father, or, in case of his death or imprisonment or desertion of his family, the mother, may prosecute as plaintiff an action for the expenses and actual loss of service resulting from the injury or death of a minor child.

241. Southern R. Co. v. Shipp, 169 Ala. 327; Nashville Lumber Co. v. Busbee, 100 Ark. 76 Accord. See Macdonald v. O’Reilley, 45 Or. 589. In Warren v. Street R., 70 N. H. 352, 362, Pike, J., said: “The child’s cause of action survived by reason of the statute, and the money recovered in it will be assets in the hands of its administrator, to be distributed in accordance with the special provisions of the statute. If the father’s negligence barred his right to recover in this action, there would seem to be no reason why it would not bar him from recovering any property of the child which he might inherit under the general provisions relating to descent and distribution, but this is not claimed to be and is not the law.”

242. Lee v. New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co. v. Logue, 158 Ill. 621; True v. Woda, 201 Ill. 315; Gibbons v. Williams, 135 Mass. 333; Tucker v. Draper, 62 Neb. 66; Davis v. Seaboard R. Co., 136 N. C. 115; Scherer v. Schlaberg, 18 N. D. 421; Bamberger v. Citizens’ R. Co., 95 Tenn. 18; Palmer v. Oregon R. Co., 34 Utah, 466; Ploof v. Burlington Traction Co., 70 Vt. 509; Vinnette v. Northern R. Co., 47 Wash. 320; Gunn v. Ohio R. Co., 42 W. Va. 676 Accord.

“The right of recovery and measure of damages are different from what existed in the intestate. This right of recovery did not exist at common law. It is wholly given by the act. It is not an act to cause to survive a right of recovery which otherwise would be taken away by the death of the injured.... Hence the contention that the recovery is in the right of the intestate, and can be defeated only by his contributory negligence, cannot be sustained.... From a very early day the common law has denied a recovery, as unjust, to a party whose negligence has contributed to the accident causing the injury for which he demands damages. All statutes conferring a right of recovery of damages, especially when in terms they give such damages only as are just, must be read and considered with reference to this universal principle of the common law.” Ross, C. J., in Ploof v. Burlington Traction Co., 70 Vt. 509, 516, 517.

“Shall the state say to the father, ‘If you know that your child is in danger of injury from the negligence of others, you are under no legal obligation to protect it from such injury, and if you allow the child to be killed, you may recover, from one who is equally at fault with yourself, for any pecuniary injury you may suffer by reason of the death?’ No such meaning can be derived from the statute.” Sedgwick, C., in Tucker v. Draper, 62 Neb. 66, 67.

See Wigmore, Contributory Negligence of the Beneficiary as a Bar to an Administrator’s Action for Death, 2 Illinois Law Rev. 487.

As to recovery where third person is administrator and there is negligence on the part of the sole beneficiary or all the beneficiaries, see: Toledo R. Co. v. Grable, 88 Ill. 441; Feldman v. Detroit R. Co., 162 Mich. 486; Davis v. Seaboard R. Co., 136 N. C. 115; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Gunn v. Ohio R. Co., 42 W. Va. 676. Contra: Wymore v. Mahaska County, 78 Ia. 396; McKay v. Syracuse R. Co., 208 N. Y. 359.

As to recovery where some of the beneficiaries are negligent and others not, see: Phillips v. Denver Tramway Co., 53 Col. 458; Love v. Detroit R. Co., 170 Mich. 1; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Darbrinsky v. Pennsylvania Co., 248 Pa. St. 503.

243. See Broschart v. Tuttle, 59 Conn. 1; Dudley v. Northampton, 202 Mass. 443, 449.

244. The arguments are omitted.

245. Hinckley v. Penobscot, 42 Me. 89; Smith v. Boston R. Co., 120 Mass. 490 (injury to passenger travelling on train in violation of Sunday law) Accord.

“The provisions of chapter ninety-eight of the Public Statutes relating to the observance of the Lord’s day shall not constitute a defence to an action for a tort or injury suffered by a person on that day.” Mass. Acts 1884, c. 57, § 1.

246. The arguments are omitted; also that part of the opinion which relates to the question of contributory negligence.

247. Atlanta Steel Co. v. Hughes, 136 Ga. 511 (plaintiff working on Sunday); Black v. Lewiston, 2 Idaho, 276; Louisville R. Co. v. Buck, 116 Ind. 566 (plaintiff working on Sunday); Chicago R. Co. v. Graham, 3 Ind. App. 28; Schmid v. Humphrey, 48 Ia. 652; Taylor v. Star Coal Co., 110 Ia. 40 (plaintiff working on Sunday); City v. Orr, 62 Kan. 61; Illinois R. Co. v. Dick, 91 Ky. 434 (plaintiff working on Sunday); Opsahl v. Judd, 30 Minn. 126; Corey v. Bath, 35 N. H. 530; Delaware R. Co. v. Trautwein, 52 N. J. Law, 169; Platz v. City, 89 N. Y. 219; Mohney v. Cook, 26 Pa. St. 342; Baldwin v. Barney, 12 R. I. 392; Hoadley v. International Paper Co., 72 Vt. 79 (plaintiff working on Sunday) Accord.

In Johnson v. Town of Irasburgh, 47 Vt. 28, the Supreme Court of Vermont, while agreeing with the reasoning in Sutton v. Wauwatosa, on the question of causation, nevertheless reached the same result as in Bosworth v. Swansey, holding that the plaintiff was not entitled to recover. This conclusion was arrived at upon grounds which were not discussed in the above Wisconsin and Massachusetts cases. The very able opinion of Ross, J., upon this point (47 Vt. 35–38), may be summarized as follows:—

The liability of the town for the insufficiency of the highway is purely statutory. The duty to travellers imposed by the statute is only a duty to that class of travellers who have the right to pass, to those who are legally travelling. The legislature did not intend to impose a duty upon towns “in behalf of a person who was forbidden to use all highways for the purposes of travel, and at a time when he was so forbidden to use them. Can he be a traveller within the purview of the statute who is forbidden to travel?” The duty and liability “are co-extensive with the purposes for which persons can legitimately use the highways, and no greater.” “The plaintiff when injured was forbidden by law to use the highway, and by reason thereof the defendant town owed him no duty to provide any kind of a highway, and therefore was under no liability for any insufficiency in any highway.”

248. Section 3 of this statute is as follows:—

“The officers and men of the Boston Protective Department, with their teams and apparatus, shall have the right of way, while going to a fire, through any street, lane, or alley in the city of Boston, subject to such rules and regulations as the city council and the fire commissioners may prescribe, and subject also to the rights of the Boston Fire Department; and any violation of the street rights of the Boston Protective Department shall be punished in the same manner as is provided for the punishment of violations of the rights of the Boston Fire Department in chapter three hundred and seventy-four of the acts of eighteen hundred and seventy-three.”

249. Monroe v. Hartford R. Co., 76 Conn. 201; Tackett v. Taylor, 123 Ia. 149; Baker v. Portland, 58 Me. 199; Bourne v. Whitman, 209 Mass. 155; Chesapeake R. Co. v. Jennings, 98 Va. 70 Accord.

250. Atlantic R. Co. v. Weir, 63 Fla. 69; Lockridge v. Minneapolis R. Co., 161 Ia. 74 Accord. See Lindsay v. Cecchi, 3 Boyce, 133; Hyde v. McCreery, 145 App. Div. 729.

In Bourne v. Whitman, 209 Mass. 155, a duly licensed automobile was being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. It has been said in a general way that such a violation is evidence of negligence of the violator, and it has sometimes been stated that this would show negligence that can be availed of as a ground of recovery by one who suffers any kind of an injury from him while this illegality continues; but it is now settled that it is not even evidence of negligence, except in reference to matters to which the statute relates. Davis v. John L. Whiting & Son Co., 201 Mass. 91, 96 and cases cited. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff, upon his right to recover, the principles that have been recognized are instructive. They were considered long ago in connection with our Sunday law. It has been established from early times that one who is violating a criminal law cannot recover for an injury to which his criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in this class of cases, is what constitutes ‘illegality,’ which is sometimes a directly contributing cause of the injury. Some cases have been decided, which seem to imply that if there is an illegal element entering into a plaintiff’s act or conduct, and this act or conduct directly contributes to his injury, he cannot recover, although the illegal element or the objectionable quality of the act had no tendency to produce the injury, and the consequences would have been the same under the other existing conditions, if the criminal element had been absent. In other cases the decision seems to turn upon whether the criminal element in the act or conduct, considered by itself alone, operated as a direct cause to produce a result that would not have been produced under the same conditions in other respects, if the criminal element had been absent. This latter seems to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied many times in recent years, as the relations of men in business and society have grown complex with the increase of population, is a reason why the violation of a criminal statute of slight importance should not affect one’s civil rights, except when this violation, viewed in reference to the element of criminality intended to be punished, has had a direct effect upon his cause of action. Our decisions seem to have been tending toward the adoption of such a rule. Welch v. Wesson, 6 Gray, 505. Spofford v. Harlow, 3 Allen, 176. Steele v. Burkhardt, 104 Mass. 59. Damon v. Scituate, 119 Mass. 66. Hall v. Ripley, 119 Mass. 135. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Moran v. Dickinson, 204 Mass. 559, 562. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 157.

Under particular statutes, we are brought back to the question, what is the legal element which is the essence of the command or prohibition? In most cases, the effect of doing or failing to do that which the law forbids or requires under a penalty, when considered in reference to its relation to one’s civil rights in collateral matters, ought to be limited pretty strictly. Take the case of driving without sleigh bells in violation of the law of the road. R. L., c. 54, § 3. Kidder v. Dunstable, 11 Gray, 342. Counter v. Couch, 8 Allen, 436, 437. The requirement of the law is that ‘No person shall travel on a bridge or way with a sleigh or sled drawn by a horse, unless there are at least three bells attached to some part of the harness.’ The wrong to be prevented is the failure to have bells while travelling in this way. The travelling in other respects is unobjectionable. The question arises whether the act should be deemed illegal as a whole, in reference to the rule that the courts will not aid one to obtain the fruits of his disobedience of law, or whether in this aspect its different qualities may be considered separately. It is possible to decide this question either way, but we think it is more consistent with justice and with the course of decision elsewhere, to hold that, in reference to the law of negligence and the rule as to rejection of causes of action that are founded on illegality, an act may be considered in its different aspects in its relation to the cause of action, and if only that part of it which is innocent affects the cause of action, the existence of an illegal element is immaterial. We do not think, under this statute, that one who drives in a sleigh without bells should be treated as a trespasser on the highway, although he is punishable criminally for the failure to have the bells attached to the harness, and is liable in damages to any member of the public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty, the regular operation of any elevator by a person under the age of sixteen years, and the regular operation of any rapidly running elevator by a person under the age of eighteen years. If a person under the prescribed age, while employed to operate an elevator, is injured through the negligence of the owner, in leaving it in an unsafe condition, shall his violation of the statute by entering this service before reaching the prescribed age, be treated as criminality, entering into every one of his acts in moving the elevator, so as to prevent his recovery for an injury from the joint effect of his employer’s negligence and his own application of the power to raise or lower the elevator? We think it better to hold, if his age and the degree of his competency, which might depend in part upon his age, had no causal connection with the injury, that his criminality was not a direct cause of the injury. In other words, that the punishable element in the act is only disobedience as to age, and although his act in applying the power to the elevator which brought him in contact with the defect, is punishable, and in a sense illegal because of the existence of that element, in determining the relation of his conduct to the cause of action, to see whether the court will aid him in the prosecution of it, we ought to limit the illegality to that part of his conduct towards which the statute is particularly directed. We are to consider the specific thing at which the statute is aimed, and the immediate effect that it was intended directly and proximately to accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall operate an automobile or motor cycle for hire, unless specially licensed by the commission so to do,’ and the earlier provision in the same section that no person shall ‘operate an automobile or motor cycle upon any public highway or private way laid out under authority of statute unless licensed so to do under the provisions of this act.’ The operating of the automobile in itself is unobjectionable. The illegal element in the act is the failure to have a license. The purpose of the requirement of a license is to secure competency in the operator. If in any case the failure to have a license, looking to those conditions that ordinarily accompany the failure to have it, is a cause contributing directly to an injury, a violator of the law would be legally responsible to another person injured by the failure; or, if he is injured himself, would be precluded from recovery against another person who negligently contributed to the injury. But we are of opinion that his failure in that respect is only evidence of negligence in reference to his fitness to operate a car, and to his skill in the actual management of it, unless in the case of the plaintiff, it is shown to be a contributing cause to the injury sued for, in which case it is a bar to recovery. We think that the operation of a car without a license, while it is a punishable act, does not render the operator a trespasser on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement contributed to the accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery. If the illegal quality of the act had no tendency to cause the accident, the fact that the act is punishable because of the illegality, ought not to preclude one from recovery for harmful results to which, without negligence, the innocent features of the act alone contributed.

The other part of this statute, relative to the licensing of automobiles, has been construed differently. In Dudley v. Northampton Street Railway, 202 Mass. 443, because of the peculiar provisions of the statute and the dangers and evils that it was intended to prevent, it was decided, after much consideration, that the having of such a machine in operation on a street, without a license, was the very essence of the illegality, and that the illegality was inseparable from the movement of the automobile upon the street at any time, for a single foot; that in such movement the machine was an outlaw, and any person on the street as an occupant of the automobile, participating in the movement of it, was for the time being a trespasser. Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed and is now the established law of the Commonwealth. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 158. The difference between this provision of the statute and that involved in the present case is in part one of form, but in connection with the form, it is still more the seeming purpose and intent of the Legislature as to permitting such machines upon the public ways without adequate means of identifying them and ascertaining their owner, together with the requirement that the machine itself, as a thing of power, shall have its own registration and legalization, the evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be extended to the provision of the statute requiring every operator to have a personal license to operate the car. The jury should have been instructed that the defendant’s failure to have a license was only evidence of his negligence as to the management of the car.”

In Taylor v. Stewart, 172 N. C. 203, Brown, J., (for the court) said:

“The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile, belonging to the defendant J. W. Stewart. At the time the car was being operated by James Stewart, the son of the said J. W. Stewart, a lad of 13 years of age. A colored chauffeur, who had been sent out with the car by the owner, was sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it was a misdemeanor for a person under the age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his honor erred. He should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the state. Zageir v. Southern Express Co., 89 S. E. 44; Paul v. Railroad, 170 N. C. 231, 87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter v. English, 166 N. C. 125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.