Chapter LXIX: Section 2901: of the Georgia Civil Code is as follows (2)

_Use for purpose not intended by owner or occupier_: Thiele _v._
McManus, 3 Ind. App. 132; Smith _v._ Trimble, 111 Ky. 861; Ferguson
_v._ Ferguson, (Ky.) 114 S. W. 297; Speicher _v._ New York Tel. Co.,
60 N. J. Law, 242, 59 N. J. Law, 23; Clark _v._ Fehlhaber, 106 Va.
803. See also Urban _v._ Focht, 231 Pa. St. 623.

_Invitee of licensee_: see Brehmer _v._ Lyman, 71 Vt. 98.

In Cox _v._ Coulson, [1916] 2 K. B. 177, a spectator in a theatre was
injured by the discharge of a pistol during a performance. Bankes, L.
J., said: “It seems to me obvious that the duty of the invitor in a
case like the present is not only confined to the state of the
premises, using that expression as extending to the structure merely.
The duty must to some extent extend to the performance given in the
structure, because the performance may be of such a kind as to render
the structure an unsafe place to be in whilst the performance is going
on, or it may be of such a kind as to render the structure unsafe
unless some obvious precaution is taken. As an illustration under the
latter head I would instance a case where a tight-rope dancer performs
on a rope stretched over the heads of the audience. In such a case the
provision of a net under the rope to protect the audience in case the
performer fell seems so obvious a precaution to take that in the
absence of it the premises could not be said to be reasonably safe. In
the present case the performance was one which included a discharge of
pistols loaded with blank ammunition as one of the incidents. If the
pistols had been properly loaded, it is difficult to see that the
incident exposed any member of the audience in any ordinarily
constructed theatre to any danger. On the other hand, if any one of
the pistols was not properly loaded, what would otherwise be a safe
performance became an exceedingly dangerous one, and any part of the
auditorium might be rendered an extremely unsafe place to be in.
Whether the circumstances were such that any negligence or want of
proper care can be attributed to the appellant in relation to the
loading of the pistol or in relation to the ammunition supplied for
that purpose has not been investigated, and I do not think that
justice can be done between the parties until this is done.”

Footnote 154:

These notices read as follows: “All persons riding on this elevator do
so at their own risk.”

Footnote 155:

Craney _v._ Union Stockyards Co., 240 Ill. 602; Kentucky Distilleries
Co. _v._ Leonard, (Ky.) 79 S. W. 281 _Accord_. But see Burns _v._
Boston R. Co., 183 Mass. 96; Pike _v._ Boston R. Co., 192 Mass. 426.

Footnote 156:

Statement rewritten. Only so much of the case is given as relates to a
single point. The passage in quotation marks is taken from the report
of this case in 67 Northeastern Reporter, 863.

Footnote 157:

Bell _v._ Central Nat. Bank, 28 App. D. C. 580; Connolly _v._ Des
Moines Inv. Co., 130 Ia. 633; Branham _v._ Buckley, 158 Ky. 848;
Schnatterer _v._ Bamberger, 81 N. J. Law. 558 _Accord_.

Footnote 158:

Washington Market Co. _v._ Clagett, 19 App. D. C. 12; Woods _v._
Trinity Parish, 21 D. C. 540; Nave _v._ Flack, 90 Ind. 205; Ford _v._
Crigler, (Ky.) 74 S. W. 661; Perrine _v._ Union Stockyards Co., 81
Neb. 790; Kenny _v._ Hall Realty Co., 85 Misc. 439; Glase _v._ City,
169 Pa. St. 488 _Accord_. Compare Larson _v._ Red River Transportation
Co., 111 Minn. 427; Eisenberg _v._ Missouri R. Co., 33 Mo. App. 85;
Henkel _v._ Murr, 31 Hun, 28; Alperin _v._ Earle, 55 Hun, 211.

Footnote 159:

Moone _v._ Smith, 6 Ga. App. 649; Mastad _v._ Swedish Brethren, 83
Minn. 40; Rommel _v._ Schambacher, 120 Pa. St. 579 _Accord_.

But compare Woolworth _v._ Conboy, 170 Fed. 934; Lord _v._ Sherer Co.,
205 Mass. 1.

Footnote 160:

Jones _v._ New York R. Co., 211 Mass. 521; De Boer _v._ Brooklyn Wharf
Co., 51 App. Div. 289 _Accord_. Compare Hillman _v._ Boston R. Co.,
207 Mass. 478.

This case is often cited as though it decided that the defendant was
liable to the plaintiff for harm suffered by the plaintiff on account
of a defect in the premises; _e. g._, defective planks on the
crossing. For a more correct view of the real question involved see
the able argument of Mr. Thorndike in Stevens _v._ Nichols, _post_.

_Liability of owner or occupier of a place manifestly intended for
public or general use_: see Crogan _v._ Schiele, 53 Conn. 186; Howe
_v._ Ohmart, 7 Ind. App. 32; Davis _v._ Central Congregational
Society, 129 Mass. 367; Holmes _v._ Drew, 151 Mass. 578; Gordon _v._
Cummings, 152 Mass. 513; Kelly _v._ Southern R. Co., 28 Minn. 98;
Marsh _v._ Minneapolis Brewing Co., 92 Minn. 182; Rachmel _v._ Clark,
205 Pa. St. 314.

_Liability of owner or occupier who passively acquiesces in use by
others_: see White _v._ France, 2 C. P. D. 308; Alabama R. Co. _v._
Godfrey, 156 Ala. 202; Herzog _v._ Hemphill, 7 Cal. App. 116;
Pastorello _v._ Stone, 89 Conn. 286; Etheredge _v._ Central R. Co.,
122 Ga. 853; Nave _v._ Flack, 90 Ind. 205; Evansville R. Co. _v._
Griffin, 100 Ind. 221; Martin _v._ Louisville Bridge Co., 41 Ind. App.
493; Zoebisch _v._ Tarbell, 10 Allen, 385; Bowler _v._ Pacific Mills,
200 Mass. 364; Habina _v._ Twin City Electric Co., 150 Mich. 41; Moore
_v._ Wabash R. Co., 84 Mo. 481, 488; Kelly _v._ Benas, 217 Mo. 1;
Barry _v._ Calvary Cemetery Assn., 106 Mo. App. 358; Walsh _v._
Fitchburg R. Co., 145 N. Y. 301; Fox _v._ Warner Asphalt Co., 204 N.
Y. 340; Monroe _v._ Atlantic R. Co., 151 N. C. 374; Phillips _v._ Orr,
152 N. C. 583; Railroad Co. _v._ Harvey, 77 Ohio St. 235; Breckenridge
_v._ Bennett, 7 Kulp (Pa.) 95.

Footnote 161:

The report in 155 Mass. 472 does not give any portion of the
arguments. The following passages are extracts from the printed brief
for the defendants.

Footnote 162:

Smith _v._ London Docks Co., L. R. 3 C. P. 326; Holmes _v._
Northeastern R. Co., L. R. 4 Ex. 254, L. R. 6 Ex. 123; Wright _v._
London R. Co., L. R. 10 Q. B. 298, 1 Q. B. D. 252; Berlin Mills _v._
Croteau, (C. C. A.) 88 Fed. 860; Smith _v._ Day, (C. C. A.) 100 Fed.
244; Currier _v._ Trustees, (C. C. A.) 117 Fed. 44; Rhode _v._ Duff,
(C. C. A.) 208 Fed. 115; Middleton _v._ Ross, (C. C. A.) 213 Fed. 6;
Alabama R. Co. _v._ Godfrey, 156 Ala. 202; Schmidt _v._ Bauer, 80 Cal.
565; Herzog _v._ Hemphill, 7 Cal. App. 116; Pauckner _v._ Wakem, 231
Ill. 276; Franey _v._ Union Stockyards Co., 235 Ill. 522, 138 Ill.
App. 215; Purtell _v._ Coal Co., 256 Ill. 110; Northwestern R. Co.
_v._ O’Malley, 107 Ill. App. 599; Deach _v._ Woolner, 187 Ill. App.
524; Faris _v._ Hoberg, 134 Ind. 269; Baltimore R. Co. _v._ Slaughter,
167 Ind. 330; Thiele _v._ McManus, 3 Ind. App. 132; Wilmes _v._
Chicago R. Co., 175 Ia. 101; Lackat _v._ Lutz, 94 Ky. 287; Smith _v._
Trimble, 111 Ky. 861; Kentucky Distilleries Co. _v._ Leonard, (Ky.) 79
S. W. 281; Bell _v._ Houston R. Co., 132 La. 88; Dixon _v._ Swift, 98
Me. 207; Patten _v._ Bartlett, 111 Me. 409; Elie _v._ Lewiston R. Co.,
112 Me. 178; Plummer _v._ Dill, 156 Mass. 426; Gauley _v._ Hall, 168
Mass. 513; Cowen _v._ Kirby, 180 Mass. 504; Norris _v._ Nawn
Contracting Co., 206 Mass. 58; Lepnick _v._ Gaddis, 72 Miss. 200;
Glaser _v._ Rothschild, 221 Mo. 180; Davis _v._ Ringolsky, 143 Mo.
App. 364; Bryant _v._ Missouri R. Co., 181 Mo. App. 189; True _v._
Meredith Creamery, 72 N. H. 154; Flanagan _v._ Atlantic Asphalt Co.,
37 App. Div. 476; Buchtel College _v._ Martin, 25 Ohio Cir. Ct. R.
494; Smith _v._ Sunday Creek Co., 74 W. Va. 606; Ross _v._ Kanawha R.
Co., 76 W. Va. 197; Hupfer _v._ National Distilling Co., 114 Wis. 279;
Muench _v._ Heinemann, 119 Wis. 441 _Accord_. See also Blossom _v._
Poteet, 104 Tex. 230 (wife bringing husband’s dinner to mill where he
was employed); Southwestern Cement Co. _v._ Bustillos, (Tex. Civ.
App.) 169 S. W. 638 (child bringing lunch to employee).

But compare Mandeville Mills _v._ Dale, 2 Ga. App. 607; Furey _v._ New
York Central R. Co., 67 N. J. Law, 270; Gorr _v._ Mittlestaedt, 96
Wis. 296.

Footnote 163:

That is, 155 Mass.

Footnote 164:

McClain _v._ Bank, 100 Me. 437; Moffatt _v._ Kenny, 174 Mass. 311
_Accord_.

Hanson _v._ Spokane Water Co., 58 Wash. 6 _Contra_. Compare Buckingham
_v._ Fisher, 70 Ill. 121.

_Liability to one who has business with an abutting owner who has a
right to use the way_: see Cavanagh _v._ Block, 192 Mass. 63.

_As to what constitutes an implied invitation_, see Bryan _v._
Stewart, 194 Ala. 353; Baltimore R. Co. _v._ Slaughter, 167 Ind. 330;
Pittsburgh R. Co. _v._ Simons, 168 Ind. 333; Stanwood _v._ Clancey,
106 Me. 72; Kalus _v._ Bass, 122 Md. 467; Walker _v._ Winstanley, 155
Mass. 301; Plummer _v._ Dill, 156 Mass. 426; Chenery _v._ Fitchburg R.
Co., 160 Mass. 211; Tracey _v._ Page, 201 Mass. 62; Shaw _v._ Ogden,
214 Mass. 475; Romana _v._ Boston R. Co., 218 Mass. 76; Allen _v._
Yazoo R. Co., 111 Miss. 267; Black _v._ Central R. Co., 85 N. J. Law,
197; Heskell _v._ Auburn Light Co., 209 N. Y. 86.

Footnote 165:

The statement has been much abridged.

Footnote 166:

Anderson _v._ Robinson, 182 Ala. 615; Hedskin _v._ Gillespie, 33 Ind.
App. 650; Shackford _v._ Coffin, 95 Me. 69; Rolfe _v._ Tufts, 216
Mass. 563; Brady _v._ Klein, 133 Mich. 422; Korach _v._ Loeffel, 168
Mo. App. 414 (but see Graff _v._ Lemp Brewing Co., 130 Mo. App. 618;
Marcheck _v._ Klute, 133 Mo. App. 280); Dustin _v._ Curtis, 74 N. H.
266; Schick _v._ Fleischhauer, 26 App. Div. 210; Stelz _v._ Van Dusen,
93 App. Div. 358; Kushes _v._ Ginsberg, 99 App. Div. 417; Boden _v._
Scholtz, 101 App. Div. 1; Mitchell _v._ Stewart, 187 Pa. St. 217;
Davis _v._ Smith, 26 R. I. 129 _Accord_. See also Clyne _v._ Helmes,
61 N. J. Law, 358. Compare Miles _v._ Janvrin, 196 Mass. 431, 200
Mass. 514; Flanagan _v._ Welch, 220 Mass. 186.

Sontag _v._ O’Hare, 73 Ill. App. 432; Schwandt _v._ Metzger Oil Co.,
93 Ill. App. 365 (but see Cromwell _v._ Allen, 151 Ill. App. 404);
Good _v._ Von Hemert, 114 Minn. 393; Glidden _v._ Goodfellow, 124
Minn. 101; Keegan _v._ Heileman Brewing Co., 129 Minn. 496; Merchants
Cotton Press Co. _v._ Miller, 135 Tenn. 187; Lowe _v._ O’Brien, 77
Wash. 677 _Contra_. See Moore _v._ Steljes, 69 Fed. 518.

_Liability where landlord makes repairs negligently_: see Mann _v._
Fuller, 63 Kan. 664; Gill _v._ Middleton, 105 Mass. 477; Thomas _v._
Lane, 221 Mass. 447; Finer _v._ Nichols, 175 Mo. App. 525; Carlon _v._
City Sav. Bank, 85 Neb. 659; Wynne _v._ Haight, 27 App. Div. 7;
Marston _v._ Frisbie, 168 App. Div. 666; Flam _v._ Greenberg, (App.
Div.) 158 N. Y. Supp. 670; Wilcox _v._ Hines, 100 Tenn. 538.

Footnote 167:

See Hutchinson _v._ The Newcastle, York, & Berwick Railway Company, 5
Exch. 343; Wiggett _v._ Fox, 11 Exch. 832.—Reporter’s Note.

Footnote 168:

Whether the result in the above case is correct is a question not yet
decided in most of the United States, and upon which conflicting
opinions have been expressed. See Hart _v._ Cole, 156 Mass. 475;
KNOWLTON, J., in Coupe _v._ Platt, 172 Mass. 458, 459; Bigelow on
Torts, 7th ed., pp. 362, 363, sections 740–743, 8th ed., p. 158;
Burdick on Torts, 3d ed., sect. 555; 2 Shearman & Redfield on
Negligence, 4th ed., sect. 706; Barman _v._ Spencer, (Ind.) 49 N. E.
9, 11, 12; Beard _v._ Klusmeier, 158 Ky. 153; Land _v._ Fitzgerald, 68
N. J. Law, 28.

Footnote 169:

Pennebaker _v._ San Joaquin Light Co., 158 Cal. 579; Lunt _v._ Post
Printing Co., 48 Col. 316; Gibson _v._ Leonard, 143 Ill. 182, 37 Ill.
App. 344; Thrift _v._ Vandalia R. Co., 145 Ill. App. 414; Woodruff
_v._ Bowen, 136 Ind. 431; Hamilton _v._ Minneapolis Desk Co., 78 Minn.
3; New Omaha Electric Light Co. _v._ Anderson, 73 Neb. 84; Woods _v._
Miller, 30 App. Div. 232; Eckes _v._ Stetler, 98 App. Div. 76; Houston
R. Co. _v._ O’Leary, (Tex. Civ. App.) 136 S. W. 601 _Accord_. But see
Wilson _v._ Great Southern Tel. Co., 41 La. Ann. 1041.

_Liability to police officer or other person in by permission of law_:
see Casey _v._ Adams, 234 Ill. 350; Eckels _v._ Maher, 137 Ill. App.
45; Blatt _v._ McBarron, 161 Mass. 21; Racine _v._ Morris, 136 App.
Div. 467; Woods _v._ Lloyd, (Pa.) 16 Atl. 43; Burroughs Adding Machine
Co. _v._ Fryar, 132 Tenn. 612; Greenville _v._ Pitts, 102 Tex. 1.

But compare Kennedy _v._ Heisen, 182 Ill. App. 200; Parker _v._
Barnard, 135 Mass. 116; Learoyd _v._ Godfrey, 138 Mass. 315; Pickwick
_v._ McCauliff, 193 Mass. 70.

_Liability to volunteer salvor in case of fire_: see Kohn _v._ Lovett,
44 Ga. 251; Gibson _v._ Leonard, 143 Ill. 182.

_Liability to person who has contractual right to inspect the
premises_: see Dashields _v._ Moses, 35 App. D. C. 583.

Footnote 170:

The authorities on all sides of the question raised in this cause are
collected and discussed in the cases that follow. See also Pollock,
Torts, 6 ed., 496–497; Piggott, Torts, 231–232; 1 Jaggard, Torts,
904–909; Clerk & Lindsell, Torts, 6 ed., 511–522; Salmond, Torts, 4
ed., 415–424; Bohlen, Affirmative Obligations in the Law of Torts, 44
Am. Law Reg. 341.

Footnote 171:

The statement of facts by the reporter is omitted.

Footnote 172:

The statement of facts is omitted.

Footnote 173:

Arguments omitted.

Footnote 174:

See an elaborate criticism of George _v._ Skivington, L. R. 5 Ex. 1,
in Blacker _v._ Lake, 106 Law Times Rep. (N. S.) 533, 537.

Footnote 175:

_Liability of abstracter to third party_ injured by mistake or
omission in abstract of title: see Thomas _v._ Guarantee Title & Trust
Co., 81 Ohio St. 432; Bremerton Development Co. _v._ Title Trust Co.,
67 Wash. 268.

_Liability of water company to injured citizen_ where it has failed to
provide water for extinguishment of fires according to its contract
with the municipality: see Sunderland, Liability of Water Companies
for Fire Losses, 3 Mich. Law Rev. 442; Kales, Liability of Water
Companies for Fire Losses—Another View, 3 Mich. Law Rev. 501; note in
19 Green Bag, 129–133.

Footnote 176:

Part of case omitted; also arguments.

On the subject of this section the student may read profitably,
Bohlen, Contributory Negligence, 21 Harvard Law Rev. 233; Clark, Tort
Liability for Negligence in Missouri, Bull. of Univ. of Mo. Law
Series, No. 12, pp. 25–43.

Footnote 177:

1 Q. B. 29, 36.

Footnote 178:

Chicago R. Co. _v._ Levy, 160 Ill. 385; Toledo R. Co. _v._ Brannagan,
75 Ind. 490; Cincinnati R. Co. _v._ Butler, 103 Ind. 31 (but changed
in case of injuries to the person, Acts of 1899, p. 58, Burns’ Ann.
St. § 362); Greenleaf _v._ Illinois R. Co., 29 Ia. 14 (but changed in
case of actions against a common carrier, Suppl. to the Code, 1913, §
3593 _a_); Brown _v._ Illinois R. Co., 123 Ia. 239; Dickey _v._ Maine
Tel. Co., 43 Me. 492; Planz _v._ Boston R. Co., 157 Mass. 377 (but
changed by Acts of 1914, ch. 553); Mynning _v._ Detroit R. Co., 67
Mich. 677; Curran _v._ Warren Chemical Mfg. Co., 36 N. Y. 153; City
_v._ Nix, 3 Okl. 136; Bovee _v._ Danville, 53 Vt. 183 _Accord_.

_Contra_, contributory negligence an affirmative defence: Inland
Coasting Co. _v._ Tolson, 139 U. S. 551; Montgomery Gaslight Co. _v._
Montgomery R. Co., 86 Ala. 372; Texas R. Co. _v._ Orr, 46 Ark. 182;
Atchison _v._ Wills, 21 App. D. C. 548; MacDougall _v._ Central R.
Co., 63 Cal. 431; Moore _v._ Lanier, 52 Fla. 353; City _v._ Hudson, 88
Ga. 599; Hopkins _v._ Utah R. Co., 2 Idaho, 300; St. Louis R. Co. _v._
Weaver, 35 Kan. 412; Hocum _v._ Weitherick, 22 Minn. 152; Buesching
_v._ St. Louis Gaslight Co., 73 Mo. 219; Nelson _v._ City, 16 Mont.
21; O’Brien _v._ Omaha Water Co., 83 Neb. 71; Valley _v._ Concord R.
Co., 68 N. H. 546; New Jersey Exp. Co. _v._ Nichols, 33 N. J. Law 434;
Jordan _v._ City, 112 N. C. 743; Carr _v._ Minneapolis R. Co., 16 N.
D. 217; Grant _v._ Baker, 12 Or. 329; Beatty _v._ Gilmore, 16 Pa. St.
463; Carter _v._ Columbia R. Co., 19 S. C. 20; Houston R. Co. _v._
Cowser, 57 Tex. 293; Richmond Granite Co. _v._ Bailey, 92 Va. 554;
Johnson _v._ Bellingham Imp. Co., 13 Wash. 455; Fowler _v._ Baltimore
R. Co., 18 W. Va. 579; Hoth _v._ Peters, 55 Wis. 405.

Footnote 179:

As to contributory negligence as a bar to an action for damage caused
in part by defendant’s failure to perform a duty imposed on him by
statute, see Bishop, Commentaries on the Written Laws, §§ 117, 117
_a_, § 131, pars. 2, 3, § 134, pars. 3,4, § 139, par. 1; Kelley _v._
Killourey, 81 Conn. 320; Catlett _v._ Young, 143 Ill. 74; Shultz _v._
Griffith, 103 Ia. 150; Hussey _v._ King, 83 Me. 568; Wadsworth _v._
Marshall, 88 Me. 263; Schutt _v._ Adair, 99 Minn. 7; Quimby _v._
Woodbury, 63 N. H. 370; Kilpatrick _v._ Grand Trunk R. Co., 72 Vt.
263.

Footnote 180:

Only so much of the case is given as relates to a single point.

Footnote 181:

Remainder of opinion omitted.

Start, J., in LaFlam _v._ Missisquoi Pulp Company, 74 Vt. 125. 143:
“The defendants, by their second request, asked for an instruction
that if, by the exercise of ordinary care and prudence upon the part
of the plaintiff, he would not have been injured, he cannot recover.
The court instructed the jury, that, if the plaintiff’s want of
ordinary care or his negligence contributed in any material degree to
the happening of the accident, he is not entitled to recover, even
though the defendants were negligent. This was in accordance with the
rule as it has sometimes been stated by this court. In Magoon _v._
Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, and in Hill _v._
New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the
negligence or carelessness of the person injured contributes in any
material degree to the production of the injury complained of, he
cannot recover; but in Reynolds _v._ Boston & Maine R. R. Co., 64 Vt.
66, 24 Atl. 134, 33 Am. St. Rep. 908, the holding is that, if the
negligence of the plaintiff contributes in the _least_ degree to the
accident, there can be no recovery. We think this is the correct rule,
and that the instruction should have conformed to it. The use of the
word ‘material’ left the jury at liberty to consider the degree of the
plaintiff’s negligence, which is not considered permissible in
jurisdictions where the doctrine of contributory negligence prevails.
To allow jurors to consider so-called degrees of negligence would, in
effect, nullify this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379.”

“Negligence contributing as an efficient cause of injury will defeat
an action therefor, irrespective of the quantum of negligence of the
respective parties.” Jaggard, J., in O’Brien _v._ St. Paul City R.
Co., 98 Minn. 205, 207–208.

“An effect often has many proximate, and many remote, causes. If the
negligence of the plaintiff was one of the proximate causes of the
injury,—if it directly contributed to the unfortunate result,—he
cannot recover, even though the negligence of the defendant also
contributed to it.” Sanborn, J., in Missouri Pac. R. Co. _v._ Moseley,
57 Fed. 921, 925.

“While purporting to give a legal definition of contributory
negligence, this instruction demands that such negligence shall be
found the sole and direct cause of the accident—an interpretation at
war with the term ‘contributory’ itself.” Reyburn, J., in Hanheide
_v._ St. Louis Transit Co., 104 Mo. App. 323, 330.

“... if it appears that his [plaintiff’s] negligence has contributed
as an efficient cause to the injury of which he complains, the court
will not undertake to balance the negligence of the respective parties
for the purpose of determining which was most at fault. The law
recognizes no gradations of fault in such case, and where both parties
have been guilty of negligence, as a general rule, there can be no
recovery. There is really no distinction between negligence in the
plaintiff and negligence in the defendant, except that the negligence
of the former is called ‘contributory negligence.’” Whittle, J., in
Richmond Traction Co. _v._ Martin’s Adm’r, 102 Va. 209, 213.

“... there was a lack of ordinary care on his [the deceased’s] part,
and where this occurs, contributing proximately to the injury, this
lack will prevent a recovery, though the negligence of the other party
may have much more contributed thereto.” Beard, C. J., in Memphis Gas
& Electric Co. _v._ Simpson, (Tenn.) 109 S. W. 1155, 1158.

American Woolen Co. _v._ Stewart, (C. C. A.) 217 Fed. 1; Birmingham R.
Co. _v._ Bynum, 139 Ala. 389; St. Louis R. Co. _v._ Musgrove, 113 Ark.
599; Denver R. Co. _v._ Maydole, 33 Col. 150; Robinson _v._ Huber,
(Del.) 63 Atl. 873; O’Keefe _v._ Chicago R. Co., 32 Ia. 467;
Pennsylvania R. Co. _v._ Roney, 89 Ind. 453; Atchison R. Co. _v._
Henry, 57 Kan. 154; Mann _v._ City, 154 Ky. 154; Marble _v._ Ross, 124
Mass. 44; Mynning _v._ Detroit R. Co., 59 Mich. 257; Hurt _v._ St.
Louis R. Co., 94 Mo. 255; Village _v._ Holliday, 50 Neb. 229;
Pennsylvania R. Co. _v._ Righter, 42 N. J. Law, 180; St. Louis R. Co.
_v._ Elsing, 37 Okl. 333; Weaver _v._ Pennsylvania R. Co., 212 Pa. St.
632; Weir _v._ Haverford Electric Co., 221 Pa. St. 611; McLean _v._
Atlantic R. Co., 81 S. C. 100; McDonald _v._ International R. Co., 86
Tex. 1; Hazen _v._ Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. _v._
Lee, 84 Va. 642; Franklin _v._ Engel, 34 Wash. 480; Tesch _v._
Milwaukee R. Co., 108 Wis. 593 _Accord_.

Footnote 182:

“The doctrine of comparative negligence no longer exists in this
state.” Wilkin, J., in City _v._ Holcomb, 205 Ill. 643, 646.

“The intrinsic difficulty of the subject of contributory negligence
has led to three distinct lines of decisions. In England and a
majority of the States of the Union, the negligence of the plaintiff
which contributes to the injury is held to be an absolute bar to the
action. In the States of Illinois and Georgia the doctrine of
comparative negligence has been adopted, that is, if on comparing the
negligence of the plaintiff with that of the defendant, the former is
found to be slight and the latter gross, the plaintiff may recover. In
this State we hold that although the injured party may contribute to
the injury by his own carelessness or wrongful conduct, yet if the act
or negligence of the party inflicting the injury was the proximate
cause of the injury, the latter will be liable in damages, the
negligence or wrongful conduct of the party injured being taken into
consideration, by way of mitigation, in estimating the damages. In
other words, if defendant was guilty of a wrong by which plaintiff is
injured, and plaintiff was also in some degree negligent or
contributed to the injury, it should go in mitigation of damages, but
cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia
Railroad Company _v._ Fain, 12 Lea, 35. At the same time we hold that
if a party by his own gross negligence bring an injury upon himself,
or proximately contribute to such injury, he cannot recover; neither
can he recover in cases of mutual negligence where both parties are
equally blamable. Id. The principal difference between our rule and
the English rule, as modified by the more recent decisions, is in
allowing the damages to be mitigated by the conduct of the injured
party. In this respect our rule meets the objection which Mr.
Thompson, in his notes on contributory negligence, makes to the
construction put by some of the courts on the English rule, or to the
application of the rule in particular cases. ‘It is,’ he says,
‘nothing more than a declaration that although both parties have been
guilty of negligence contributing to the injury, the party who
suffered the damage is to be completely exonerated, and the other
party is not to be exonerated to any extent; the former is to recover
of the latter without any abatement on account of his own share of the
fault, all the damages which he has suffered.’ ‘This is,’ he adds,
‘manifest injustice; and yet it is practiced every day in the courts
of England and in those of nearly every State in the Union.’ 2
Thompson on Neg. 1155. Our rule, moreover, is merely an adaptation of
the law which prevails in civil actions for assault and battery, where
the conduct of the plaintiff in the way of provocation is always
admissible in evidence to mitigate the damages. Jackaway _v._ Dula, 7
Yer. 82; Chambers _v._ Porter, 5 Cold. 273, 280; Suth. on Dam. 745.”
Cooper, J., in Louisville R. Co. _v._ Fleming, 14 Lea, (Tenn.) 128,
135. But see Southern R. Co. _v._ Pugh, 97 Tenn. 624.

Footnote 183:

This refers to § 8657: “Every common carrier by railroad while
engaging in commerce between any of the several States or Territories,
or between the District of Columbia and any of the States or
Territories, or between the District of Columbia or any of the States
or Territories and any foreign nation or nations....”

Footnote 184:

See also Florida, Comp. L., 1914, § 3149; Georgia, Park’s Annotated
Code, 1914, §§ 2781 (2332), 2783; Iowa, Supplement to Code, 1913, §
2071; Kansas, Laws of 1911, ch. 239, § 2; Maine, Pub. L. 1910, c. 258,
§ 4; Mississippi, Laws of 1910, c. 135; Nebraska, Rev. St. 1915, §§
6054, 7892; Nevada, Rev. L. § 5651 (employees in mines); Ohio, Page &
Adams, Ann. Gen. Code, §§ 6245–1, 9018; South Dakota, Laws of 1907, c.
219, § 2; Texas, McEachin’s Civ. St. art. 6649; Virginia, Acts of
1916, ch. 444, § 2; Wisconsin, Stat. 1915, ch. 87, § 1816 (3).

Compare Arkansas, Kirby’s Dig. § 6654; Illinois, R. S. c. 114, § 231;
Indiana, Burns’ Ann. St. § 5277 _c_; Missouri, R. S. (1909) §§ 3164,
3172.

Footnote 185:

American Workmen’s Compensation Acts often provide that if the
employer does not elect to act under the statute, he shall be liable
to an action at law by the injured employee in which contributory
negligence shall be no defence. See, for example, Ohio, Page & Adams,
Annotated Gen. Code, § 1465–60.

Footnote 186:

Portions of opinion omitted. Argument for appellant omitted.

Footnote 187:

PLANIOL, TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL (6 ed.) II, § 899: “It
frequently happens that one who suffers damage through the fault of
another is not himself exempt from all fault; he has concurred in the
accident and shares responsibility therefor with the other. In this
case there is what we call in practice _faute commune_. This community
of fault diminishes the responsibility of the principal author of
damage who now only owes a partial reparation.”

GERMAN CIVIL CODE, § 254: “If any fault of the injured party has
contributed in causing the injury, the obligation to compensate the
injured party and the extent of the compensation to be made depends
upon the circumstances, especially upon how far the injury has been
caused chiefly by the one or the other party.

“This applies also even if the fault of the injured party consisted
only in an omission to call the attention of the debtor to the danger
of an unusually serious injury which the debtor neither knew nor ought
to have known, or in an omission to avert or mitigate the injury....”

[The word “debtor” is used here in the Roman sense, meaning the person
bound in any sort of obligation—here the delictual obligation to make
reparation for an injury due to fault.]

Footnote 188:

See The Drumlanrig, [1911] A. C. 16; Steamship Devonshire _v._ Barge
Leslie, [1912] A. C. 634; St. Louis Packet Co. _v._ Murray, 144 Ky.
815. But compare Murphy _v._ Diamond, 3 La. Ann. 441; New York Towboat
Co. _v._ New York R. Co., 148 N. Y. 574; Union Steamship Co. _v._
Nottingham, 17 Grat. 115.

Footnote 189:

The book cites Carth. 194 and 451 in the margin, which references do
not bear on the point here in question.—Reporter’s note.

Footnote 190:

The usual mode of citation is 1 Q. B.

Footnote 191:

“The other instruction was in these words: ‘There is another
qualification of this rule of negligence, which it is proper I should
mention. Although the rule is that, even if the defendant be shown to
have been guilty of negligence, the plaintiff cannot recover if he
himself be shown to have been guilty of contributory negligence which
may have had something to do in causing the accident; yet the
contributory negligence on his part would not exonerate the defendant,
and disentitle the plaintiff from recovering, if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the plaintiff’s negligence.’

“The qualification of the general rule, as thus stated, is supported
by decisions of high authority, and was applicable to the case on
trial.” Gray, J., in Inland Coasting Co. _v._ Tolson, 139 U. S. 551,
558.

“Although the defendant’s negligence may have been the primary cause
of the injury complained of, yet an action for such injury cannot be
maintained if the proximate and immediate cause of the injury can be
traced to the want of ordinary care and caution in the person injured;
subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies _v._ Mann, 10 M. & W. 546)
that the contributory negligence of the party injured will not defeat
the action if it be shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the
injured party’s negligence.” Lamar, J., in Grand Trunk R. Co. _v._
Ives, 144 U. S. 408, 429.

Footnote 192:

The statement of facts and portions of the opinion are omitted.

Footnote 193:

174 U. S. 379.

Footnote 194:

The statement of facts is condensed, and the arguments of counsel and
part of the opinion are omitted.

Footnote 195:

Only a portion of the opinion is printed.

Footnote 196:

The statement of facts is abridged from the statement in the opinion
and from the statement made by the reporter. The citations of counsel
are omitted.

Footnote 197:

“... The wagon so loaded coming to the bridge and being unable to pass
underneath it, the train stopped, and those who had charge of it,
without looking to ascertain the cause of the stoppage, gave momentum
to the engine to such an extent that the wagon with its load knocked
the bridge down.” Statement of facts in opinion of Bramwell, B., L. R.
9 Exch. 72. Compare statement in L. R. 10 Exch. 102.

Footnote 198:

Printed papers in the case.

Footnote 199:

L. R. 9 Ex. 71.

Footnote 200:

L. R. 10 Ex. 700.

Footnote 201:

Arguments of counsel are omitted.

Footnote 202:

L. R. 9 Ex. at 72.

Footnote 203:

See also Cayzer _v._ Carron, 9 App. Cas. 873; McDermaid _v._ Edinburgh
Tramways Co., 22 Sc. L. R. 13.

Footnote 204:

Only a portion of the opinion is printed.

Footnote 205:

This opinion of CARPENTER, J., was given in the Circuit Court; and was
quoted by MOORE, J., in his dissenting opinion in the Supreme Court.

Footnote 206:

“We shall immediately see, moreover, that independent negligent acts
of A and B may both be proximate in respect of harm suffered by Z,
though either of them, if committed by Z himself, would have prevented
him from having any remedy for the other. Thus it appears that the
term ‘proximate’ is not used in precisely the same sense in fixing a
negligent defendant’s liability and a negligent plaintiff’s
disability.” Pollock, _Torts_, 6th ed. 447.

“... In determining whether the cause of the accident is proximate or
remote, the same test must be applied to the conduct of the injured
party as is to be applied to the defendant. The conduct of the latter
cannot be judged by one rule and that of the former by some other
rule.”—O’BRIEN, J., in Rider _v._ Syracuse R. Co., 171 N. Y. 139, 154.

[An instruction as to the meaning of the word “proximately” intimates]
“that there is a difference between the meaning of the word when
applied to the defendant and when applied to the plaintiff. There is
no such difference. Contributory negligence on the part of the
plaintiff must bear the same proximate relation to the result as the
actionable negligence of the defendant. It need not be the sole cause,
and it may contribute but slightly, but it must be a proximate cause
in the same sense that the defendant’s negligence must be proximate.”
WINSLOW, J., in Boyce _v._ Wilbur Lumber Co., 119 Wis. 642, 649–650.

Footnote 207:

The statement has been abridged and the arguments and part of the
opinion are omitted.

Footnote 208:

Compare Rider _v._ Syracuse R. Co., 171 N. Y. 139.

Footnote 209:

The statement of facts and argument of counsel are omitted.

Footnote 210:

The statement of facts, arguments and parts of the opinions are
omitted.

Footnote 211:

See also Bruggeman _v._ Illinois R. Co., 147 Ia. 187, 204–214;
Anderson _v._ Minneapolis R. Co., 103 Minn. 224; Cavanaugh _v._ Boston
R. Co., 76 N. H. 68; Scholl _v._ Belcher, 63 Or. 310, 323; Underwood
_v._ Old Colony R. Co., 33 R. I. 319. As to the requirement of a “new
act of negligence” see Rider _v._ Syracuse R. Co., 171 N. Y. 139.

Footnote 212:

Statement abridged. Only part of opinion is given.

Footnote 213:

Statement omitted, also a large part of opinion.

Footnote 214:

85 N. C. 310.

Footnote 215:

Statement abridged. Part of opinion omitted.

Footnote 216:

The statement has been abridged and the arguments and part of the
opinion are omitted.

Footnote 217:

See also Weitzman _v._ Nassau R. Co., 33 App. Div. 585; Green _v._
Metropolitan R. Co., 42 App. Div. 160.

Footnote 218:

Statement abridged.

Footnote 219:

In Kierzenkowski _v._ Philadelphia Traction Co., 184 Pa. St. 459, the
plaintiff was a girl three years old, who had been knocked down by one
of defendant’s horse cars. The court (_inter alia_) instructed the
jury, in substance, as follows:—

The law does not allow that children of this age can be guilty of
contributory negligence; but you are obliged to consider the case as
to the negligence alone of the defendant. If you were driving along
the street with your horse and wagon, and a child runs under the feet
of the horses and is killed, you are not responsible; not because the
child is guilty of contributory negligence, but because you are not
guilty of negligence. If it is an unavoidable accident, you are not
responsible. If the jury believe from the evidence in this case that
the child suddenly and unexpectedly appeared in the vicinity of the
track under such circumstances that the driver of the car could not
have discovered its presence in time to avoid the accident, the
verdict must be for the defendant.

An exception to the charge was overruled.

Footnote 220:

Birmingham R. Co. _v._ Brantley, 141 Ala. 614; Baltimore Traction Co.
_v._ Wallace, 77 Md. 435; Lassiter _v._ Raleigh R. Co., 133 N. C. 244;
Memphis R. Co. _v._ Haynes, 112 Tenn. 712 _Accord_.

“Let us view this subject in a more concrete form. The last railroad
statistics I have been able to find were issued by the Interstate
Commerce Commission for the year 1906.

[The learned judge then copies a table from the report referred to and
proceeds.]

It will be observed that while the road mileage and train mileage in
Canada are each ten per cent of the entire road system and the entire
train mileage, the number of trespassers injured or killed in that
country was only three per cent of the total number; while in this
State the road mileage is twenty-six per cent of the total road
mileage and the train mileage twenty-five per cent of the total train
mileage, forty-eight per cent of the total number of trespassers
injured or killed were injured or killed in Missouri.

Illinois has thirty per cent of the road mileage and thirty-two per
cent of the train mileage, and only twenty per cent of the total
number of trespassers injured or killed were injured or killed in that
State.

It is important to know both the train mileage and the road mileage,
for the reason the greater number of trains that are run over a given
road mileage the greater number of fatalities to trespassers will
result. The train mileage, therefore, in the various States offers the
most accurate basis for comparison.

A computation will show that one trespasser was killed for every
eighty-one miles of road in Canada; for every seventeen miles in
Michigan; for every forty-two miles in Ohio; for every thirty-one
miles in Indiana; for every forty-six miles in Illinois; for every
seventeen miles in Missouri; and for every forty-one miles in Iowa.

It will be observed that the number of miles for each trespasser
killed in Missouri and Michigan is the same. This results, however,
from the fact that the line from Chicago, St. Louis, and other points
converging at Montpelier, Ohio, and thence all the traffic eastward
goes over the one hundred and five miles of line located in the State
of Michigan. The effect of this is also shown in the train mileage.
Thus, while Michigan has only four per cent of road mileage, it has
one-third or six per cent of the train mileage. The population along
the Michigan mileage is very dense; about five miles of the line from
Delray to Detroit run through a very densely populated
district—practically a city.

It should also be noted that while Illinois has greater road and train
mileage than Missouri, only sixteen trespassers were injured or killed
while walking on tracks in that State, where thirty-nine persons were
killed or injured while walking on the track in Missouri. If we also
consider the more dense population of Illinois, the figures become
more startling. And if we should extend these figures in the same
proportion to all of the railroads of the State and country, we would
then see the appalling number of trespassers killed and injured
annually on account of this inhuman doctrine, which is approximately
7750.

In so far as I have been able to ascertain, the courts of all the
other States than this hold that persons who walk upon railroad tracks
do so at their peril, and I am thoroughly satisfied and convinced that
this fact accounts for the small number of fatalities to track-walkers
in those States as compared with Missouri; and by parity of reasoning
I am also convinced that if said section 1105 was strictly enforced,
as it should be, the contrast between those States and this would not
be near so great as it is now; and that if we had a statute like that
of Canada, making it a crime for persons to walk upon railroad tracks,
then the percentage of fatalities to track-walkers in this State would
fall still lower than what it is in any of the States mentioned. Such
a policy and such a statute would exclude from the railroads all
pedestrians, and thereby save this great sacrifice of life and limb,
as well as the pecuniary loss incident thereto.” WOODSON, J.
(dissenting), in Murphy _v._ Wabash Railroad Company, 228 Mo. 56, 88,
108.

See also the observations of Professor Clark in University of Missouri
Bulletin, Law Series, No. 12, 34–39.

Footnote 221:

Birmingham Light & Power Co. _v._ Jones, 146 Ala. 277; Indianapolis R.
Co. _v._ Boettcher, 131 Ind. 82 _Accord_.

Footnote 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_.

Footnote 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.

Footnote 224:

Only a portion of the opinion is printed.

Footnote 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.

Footnote 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.

Footnote 227:

Statement of case abridged. Arguments omitted.

Footnote 228:

116 U. S. 366.

Footnote 229: