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Nelson v. Great Northern R. Co. 28 Mont. 297, 72 Pac. 642; Pruitt v. Hannibal & St. J. R. Co. 62 Mo. 527.

An act of God is no defense if the goods would not have been exposed to the accident but for an unreasonable delay in their shipment.

available means and facilities for the safety to Minneapolis, and plaintiff having refused of the goods. to accept the corn in its damaged condition, caused the same to be sold, and tendered plaintiff the proceeds, less freight charges. Plaintiff brought this action to recover the value of the corn, alleging in its complaint that it was damaged and injured while in the possession of defendant, through its negligence and carelessness. The delivery of the corn to defendant for transportation, and that it was damaged while in defendant's possession, are admitted in the answer, but it is alleged in defense that the damage was caused by an act of God; that an unusual and extraordinary rainfall occurred at Kansas City and vicinity at the time the car was in its yards, causing the river to overflow its banks and submerge defendant's yards, the occurrence and extent of which could not have been foreseen or anticipated. The trial court instructed the jury in part that, if the corn was destroyed by an act of God, unaccompanied by the concurrent negligence of defendant, plaintiff could not recover; but, in effect, left to the jury to say whether the delay in forwarding the car was negligence, and whether such negligence concurred in causing the damage. The jury returned a verdict for plaintiff, and defendant appealed from an order denying its alternative motion for judgment notwithstanding the ver

Armentrout v. St. Louis, K. C. & N. R. Co. 1 Mo. App. 158; Michigan C. R. Co. v. Curtis, 80 Ill. 324; Merchants' Despatch Transp. Co. v. Kahn, 76 Ill. 520; Wald v. Pittsburg, C. C. & St. L. R. Co. 162 Ill. 545, 35 L. R. A. 356, 53 Am. St. Rep. 332, 44 N. E. 888; Ransier v. Minneapolis & St. L. R. Co. 32 Minn. 331, 20 N. W. 332; Dugan v. St. Paul & D. R. Co. 40 Minn. 544, 42 N. W. 538; Perry v. Tozer, 90 Minn. 341, 101 Am. St. Rep. 416, 97 N. W. 137; Ouverson v. Grafton, 5 N. D. 289, 65 N. W. 676; Cook v. Minneapolis, St. P. & S. Ste. M. R. Co. 98 Wis. 624, 40 L. R. A. 457, 67 Am. St. Rep. 830, 74 N. W. 561; Walrod v. Webster County, 110 Iowa, 349, 47 L. R. A. 480, 81 N. W. 598; Selleck v. Lake Shore & M. S. R. Co. 93 Mich. 375, 18 L. R. A. 154, 53 N. W. 556; Lutz v. Atlantic & P. R. Co. 6 N. M. 496, 16 L. R. A. 819, 30 Pac. 912; Salisbury v. Her chenroder, 106 Mass. 458, 8 Am. Rep. 354.

Brown, J., delivered the opinion of the dict or for a new trial.

court:

The facts in this case are as follows: On or about May 12, 1903, plaintiff delivered to defendant at Stafford, Kansas, a car load of broom corn, to be transported to Minneapolis, this state. The route of transportation was by way of Kansas City, and defendant was to forward the car at that point, the terminus of its line, over the Chicago Great Western road. The car reached the freight yards of defendant at Kansas City on May 23d, but defendant wholly failed and neglected to send it forward or notify the Chicago Great Western Company of its arrival, though the evidence tends to show that immediately after the arrival of the car at Kansas City defendant sent a messenger to communicate the fact to the Great Western company, and that it was to be forwarded over its line, but through carelessness the messenger notified the Missouri Pacific company instead, and the Great Western was not informed of the matter at all. In consequence of the neglect of the messenger, the car remained in the yards of defendant until it was submerged by water in the great flood occurring during the last days of May and the first days of June at Kansas City, and the corn substantially destroyed. After the waters of the flood had receded, defendant, having first offered to forward the car

The only assignments of error requiring consideration are those which challenge the charge of the trial court, in which the jury was instructed that, if the negligent delay of defendant in forwarding the car concurred in causing the injury or loss complained of. defendant was liable. It is contended with much earnestness and ability by defendant's counsel that, notwithstanding there might have been negligent delay in forwarding the car from Kansas City to Minneapolis, but for which the corn would not have been damaged, yet the damage complained of resulted proximately from the flood, an act of God, and that, as plaintiff failed to show that defendant was chargeable with neglect in not. foreseeing or guarding against the danger, no recovery can be had. The question presented, then, is whether a common carrier is liable to the owner of goods delivered to him for transportation, which are damaged or destroyed by an act of God while in his possession, in consequence of a negligent delay in forwarding them, whether the act of God could reasonably have been anticipated or not. The question is an important one, and the authorities are not in harmony. We have considered it with care in all its bearings, and reach the conclusion that the carrier is liable.

As a general rule, applicable to all cases.

dered defendant liable, the case must be reversed.

of negligence, if damage is caused by the concurrent force of defendant's neglect and some other cause for which he is not re- One of the first cases reported in the sponsible, including an act of God, he is nev- books, so far as our research has extended, ertheless liable if his negligence is one of wherein the carrier is held liable for neglithe proximate causes of the injury com- gent delay in transporting goods, not perishplained of, even though, under the particular able, which were injured in transit by an circumstances, he was not bound to antici- overpowering cause not reasonably to have pate the interference of the intervening force been anticipated, is Michaels v. New York C. which concurred with his own. In the ap- R. Co. 30 N. Y. 564, 86 Am. Dec. 415. In plication of this rule, however, the authori- that case there was a delay of several days ties are not agreed. It is held in some in forwarding certain dry goods delivered states, as applied to common carriers, that to the defendant for transportation, which a negligent delay in forwarding property de- were damaged in transit by an act of God,— livered to them for transportation, which are a flood similar to the one in the case at bar. injured by an act of God, or other cause for In disposing of the case and the contention which they are not responsible, and could of the railway company that it was exempt not reasonably have been anticipated, does from liability for the reason that the injury not render the carrier liable, although the complained of was the result of an act of property would not have been damaged had God, the court said: When a carrier is inthere been no delay. 1 Am. & Eng. Enc. trusted with goods for transportation, and Law, 2d ed. p. 596. Courts holding to this they are injured or lost in transit, the law rule place their decisions on the ground that holds him responsible for the injury. He is the act of God in such cases is the proxi- only exempted by showing that the injury mate cause of the injury, and not the delay was caused by an act of God or the public in transportation. Herring v. Chesapeake & enemy; and to avail himself of such exempW. R. Co. 101 Va. 778, 45 S. E. 322. In tion he must show that he was himself free other states the opposite doctrine is settled from fault at the time. His act or negand adhered to. Shearm. & Redf. Neg. § 40. ligence must not concur or contribute to the The authorities are not at variance where injury. If he departs from the line of his the property damaged is perishable, or in- duty, and violates his contract, and while herently susceptible to damage from cli- thus in fault, and in consequence of that matic influences, as sudden changes in the fault, the goods are injurea by an act of weather. Changes in the weather are condi- God, which would not otherwise have caused tions which the carrier is bound to antici- the injury, he is not protected. That case pate as likely to occur, and for injuries re- has been consistently followed and adhered sulting to perishable goods from such causes to in New York, and is now the settled law of the carrier is liable where his negligent de- that state. In Read v. Spaulding, 30 N. Y. lay in forwarding them contributes to cause 630, 86 Am. Dec. 426, it was held that, if the injury. Goods in this class are those a common carrier unreasonably delays goods likely to be damaged by freezing or from received by him for transportation, and they excessive heat. The authorities are at vari- are injured by an act of God in consequence ance, in so far as negligent delay is conof such delay, he must show, to exempt himcerned, only in cases involving property not self from liability, that the delay did not perishable. The property in the case at bar contribute to, or concur in, the injury. In was of that character, and would not have Condict v. Grand Trunk R. Co. 54 N. Y. 500, been damaged but for the flood that sub- it was said that it is the duty of a common merged the car while in the yards at Kan- carrier to forward goods delivered to him for sas City; neither would it have been dam- transportation promptly, and within a reaaged had defendant forwarded the car to sonable time, and, if a loss occurs in which Minneapolis promptly, and without unreahis negligence in part concurs, he is liable. See also Dunson v. New York C. R. Co. 3 sonable delay, as it was required by law to Lans. 265. This doctrine has been followed do. So the question is, Was the negligent and applied in other states. In Wolf v. delay of defendant in forwarding the car one American Exp. Co. 43 Mo. 421, 97 Am. Dec. of the proximate causes of the damage to 406, the court laid down the general rule in the corn, or did such delay concur with the such cases in the following language: "The flood in fact causing the damage? It may act of God which excuses the carrier must be conceded, for the purposes of this case, not only be the proximate cause of the loss, that the flood was an act of God; that it was but the better opinion is that it must be the unprecedented, and beyond the reasonable sole cause; and, where the loss is caused by anticipation of the most prudent residents of the act of God, if the negligence of the carthe vicinity where it occurred; and, unless rier mingles with it as an active and cowe are to hold that the negligent delay ren-operative cause, he is still responsible." In

neapolis & St. L. R. Co. 91 Minn. 229, 103 Am. St. Rep. 507, 97 N. W. 893.

Wald v. Pittsburg, C. C. & St. L. R. Co. 162 Ill. 545, 35 L. R. A. 356, 53 Am. St. Rep. 332, 44 N. E. 888, it appeared that plain- We have examined the authorities holding tiff had purchased of defendant a ticket en- the opposite of this doctrine, and, while the titling him to passage from Chicago to New courts adhering to the same are of eminent York upon one of its trains known as the standing, we have no difficulty in adopting "Limited Express." He was also entitled, the view of the cases above cited. The rule as a matter of law, to have his baggage, that permits a carrier to excuse his negliwhich was checked at the time he procured gence by an act of God overtaking him while his ticket, forwarded by the same train. The thus in fault seems to us unsound. It is baggage was, however, by the negligence of based on too strict an application of the rule the baggageman, forwarded from some point of proximate cause. It is the duty of a on the line by the day express, a train follow- common carrier to whom goods are delivered ing the "Limited Express" a number of | for transportation promptly and without unhours later. Plaintiff reached his destina- | reasonable delay to forward them to their tion in safety, but the day express which destination, and such was defendant's duty carried his baggage was overtaken by a flood in the case at bar. This it failed to do, and at Johnstown, Pennsylvania,—an act of its negligence in this respect is not seriously God, and the baggage destroyed. The controverted. The car arrived at its yards court held the defendant liable, saying in in Kansas City on the 23d of May, and was the opinion that the unnecessary delay of a permitted to remain there without proper carrier which subjects goods in his posses- effort to forward it until it was overtaken sion to loss by an act of God, which they by the flood. It could have been moved would not otherwise have met with, is in it- from defendant's yards on any day after its self such negligence as will render him arrival prior to the 29th of May, and, had liable. In Louisville & N. R. Co. v. Gidley, this been done, the corn would not have been 119 Ala. 523, 24 So. 753, it appeared that damaged. If defendant had acted as replaintiff delivered to defendant, a common quired by the terms of its contract, and as carrier, at Gadsden, Alabama, goods to be enjoined by law, the car would have been fortransported to Philadelphia. The carrier warded, and would have arrived at its destiunnecessarily delayed forwarding them for nation prior to the flood. That defendant's some days, and they were in the meantime neglect concurred and mingled with the act destroyed by fire, for which defendant was in of God seems the only reasonable conclusion no way responsible, and for which it could the facts will warrant, and we feel safe in not, under its contract, have been made lia- applying the general rule that an act of God ble to the owner of the goods. The court is not in such cases a defense. Every reason held that the unnecessary delay in shipment in equity and justice relieves a carrier from was the proximate cause of the loss, and that the performance of his contract and from liathe carrier was liable. This rule of liability bility for injuries to property in his custody is followed in Kentucky. Cassilay v. Young, for transportation, resulting exclusively 4 B. Mon. 265, 39 Am. Dec. 505; Hernsheim from an act of God, or other inevitable acBros. v. Newport News & M. Valley Co. 18 cident or cause over which he has no conKy. L. Rep. 227, 35 S. W. 1115. Also in trol, and could not reasonably anticipate or Maryland. Baltimore & O. R. Co. v. Keedy, guard against. But reasons of that nature 75 Md. 320, 23 Atl. 643. The foregoing lose their force and persuasive powers when cases all involve property not perishable, applied to a carrier who violates his contract, and the negligent delay was held either the and by his unreasonable delay and procrastination is overtaken by an overpowering proximate cause of the loss, or that it concurred with the act of God in causing the cause, even though of a nature not reasondamage and rendered the carrier liable. ably to be anticipated or foreseen. If, but for his negligence, the loss would not have Other cases, more or less in point, may be occurred, no sound reason will excuse him, found collected in 36 Am. St. Rep. 339. See and he should not be relieved by an applicaalso Deming v. Grand Trunk R. Co. 48 N. H. tion of the abstract principles of the law of 455, 2 Am. Rep. 267; Michigan C. R. Co. v. proximate cause. No wrongdoer should be Curtis, 80 Ill. 324; Campbell v. Morse, Harp. allowed to apportion or qualify his own L. 468; Meyer v. Vicksburg, S. & P. R. Co. wrong; and, if a loss occurs while his wrong41 La. Ann. 639, 17 Am. St. Rep. 408, 6 So. ful act is in operation and force, and which 218; Missouri, K. & T. R. Co. v. McFadden is attributable thereto, he should be held Bros. 89 Tex. 138, 33 S. W. 853; Pruitt v. liable. Davis v. Garrett, 6 Bing. 716. Hannibal & St. J. R. Co. 62 Mo. 527. And the rule was, in effect, laid down, though the precise question here under consideration was not there involved in Jones v. Min.

Our conclusions are that the trial court correctly instructed the jury, that the record presents no reversible errors, and the order appealed from is affirmed.

KANSAS SUPREME COURT.

UNION PACIFIC RAILWAY COMPANY,

Plff. in Err.,

v.

Adeline CAPPIER.

(66 Kan. 649.)

1. A trespasser on a railway track was struck by a moving car, to which an engine was attached, and injured without fault on the part of the servants of the company. Held, that the failure of the railway employees operating the car and engine to take charge of the wounded man and give him care and attention was not the violation of

a legal duty for which the company was liable. 2. The case at bar is distinguishable from those where the servants of the railway

*Headnotes by SMITH, J.

NOTE.-Care due to sick, infirm, disabled, and otherwise helpless persons, with whom no contract relation is sustained.

1. Scope of note, 513.

II. No duty as between strangers, 513.
III. Principles which determine duty in cer-
tain relations.

a. Duty of special care due to persons
under disability in general, 514.

b. Limitation upon this duty where dis-
abled party is trespasser, 514.

c. Duty limited by negligence of per-
son under disability, 515.

d. Another's negligence not excuse for
wilful or wanton injury, 516.
e. Summary, 517.

AV. Duty to avoid injury.

a. To the sick and infirm,518.

b. To persons of defective sight or
hearing, 521.

c. To persons in helpless situations.

1. Sleeping on railway track, 523.
2. Foot caught in railway track,

525.

3. Walking on railway trestle, 526.
4. Falling on railway track, 527.
5. Driving frightened horse, 528.
6. Instances of other helpless sit-
uations, 532.

V. Duty of persons inflicting injury to care
for those injured.

a. Obligation to prevent aggravation
of injury, 533.

company were at fault, and also from those where the injury was occasioned without fault, and the negligent acts or omissions occurred after the company had taken the injured person in charge.

(April 11, 1903.)

ERROR to the District Court for Wyan

dotte County to review a judgment in favor of plaintiff in an action brought to recover damages for the alleged negligent killing of plaintiff's son. Beversed. The facts are stated in the opinion. Messrs. N. H. Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in

error:

Even if the deceased had been a passenger, and had been hurt without fault of the VIII. Presumptions in absence of knowledge of disability.

a. Right to presume person in peril will help himself, 550.

b. Limitations upon exercise of such presumption.

1. Warning of danger generally necessary as basis for presumption, 552.

2. Presumption may be repelled by circumstances, 552.

3. "Last moment" to which presumption may be indulged, 554.

I. Scope of note.

The authorities upon the precise question determined in UNION P. R. Co. v. CAPPIER are so few that it may be helpful to have the question considered in the light of established legal principles, and their application to somewhat similar situations, viz., those in which a person's ability to care for himself is more or less impaired because of some disability from which he suffers. The discussion will not be extended, however, to the consideration of the duty ow ing to childhood (see note, Care required of railroad companies to prevent injuring small children upon the track, 25 L. R. A. 791); nor to persons in a state of intoxication (see note. Intoxication as affecting negligence, 40 L. R. A. 131); nor to the duty owing persons under this and other disabilities where contract relation exists (see notes, Ex

a

b. What is sufficient performance of posure of drunken passenger to danger by ejecobligation, 536.

VI. Knowledge of disability.

a. Actual knowledge generally neces-
sary to creation of duty, 536.

b. When mere belief sufficient to im-
pose duty, 538.

c. Negligent ignorance equivalent to
knowledge, 539.

VII. Duty to discover another's peril or dis

ability.

tion from car, 19 L. R. A. 327; Duty of carrier to passengers taken ill during journey, 31 L. R. A. 261; Duty of master to furnish medical aid to servant, 28 L. R. A. 546; and Authority of agent or representative to employ medical services for employee or other third persons, 20 L. R. A. 695): nor to the question of liability for injuries resulting in the aggravation of previous disease or injury, except as it arises in respect to persons instrumental in causing the

a. At places where people are likely previous injury (see note, Effect of previous

to be present, 539.

disease of person injured on liability for caus

b. Whether duty exists a8 to tres- ing the injuries, 16 L. R. A. 268).
passers, 543.

c. What is sufficient notice of peril or

II. No duty as between strangers.

disability,548.

As stated in UNION P. R. Co. v. CAPPIER, "It

defendant, it would not have been obliged extinguish a fire found on the right of way, to furnish him medical care and treatment. unless the fire originated through its negliUnion P. R. Co. v. Beatty, 35 Kan. 265, gence. 57 Am. Rep. 160, 10 Pac. 845; Clark v. Missouri P. R. Co. 48 Kan. 654, 29 Pac. 1138.

In the case of a trespasser there is no liability unless it is proved by affirmative evidence that the injuries resulted from culpable negligence after he was noticed upon the track.

Kenney v. Hannibal & St. J. R. Co. 70 Mo.

252.

Mr. C. W. Trickett, for defendant in

error:

A railroad company owes a duty to even a trespasser after the injury.

Beach, Contrib. Neg. 2d ed. 277; Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec.

Tennis v. Inter-State Consol. Rapid Tran- 545; Redf. Railways, 510; Philadelphia & sit R. Co. 45 Kan. 503, 25 Pac. 876.

The employees of a railroad company do not, by reason, merely, of their employment, owe any duty to the proprietors of lands adjoining the company's right of way to

is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance." Those duties which are dictated merely by good morals, or by humane considerations, are not within the domain of the law. Feelings of kindliness and sympathy may move the good Samaritan to minister to the needs of the sick and wounded at the roadside, but the law imposes no such obligation, and suffering humanity has no legal complaint against those who pass by on the other side. Legal rights are relative, and arise out of those complex relations of human society which create correlative rights and duties, whose performance is so necessary to the good order and well being of society that the state makes their observance obligatory. Unless, therefore, the relation existing between the sick, helpless, or injured and those who witness their distress, is such that the law imposes the duty of providing the necessary relief, there is neither obligation to minister on the one hand, nor cause for legal complaint on the other. Allen v. Ferguson, 18 Wall. 1, 21 L. ed. 854 ;) West Virginia C. & P. R. Co. v. State, 96 Md. 652, 666, 61 L. R. A. 574, 54 Atl. 669; Western Maryland R. Co. v. Kehoe, 83 Md. 434, 450, 35 Atl. 90; Com. v. McDuffy, 126 Mass. 469; Williams v. Chicago & A. R. Co. 135 Ill. 491, 11 L. R. A. 352, 25 Am. St. Rep. 397, 26 N. E. 661; O'Leary v. Brooks Elevator Co. 7 N. D. 554, 41 L. R. A. 677, 75 N. W. 919; Illinois C. R. Co. v. King, 179 Ill. 91, 70 Am. St. Rep. 93, 53 N. E. 552; Baltimore & P. R. Co. v. Cumberland, 176 U. S. 238, 44 L. ed. 451, 20 Sup. Ct. Rep. 380 Pollock, Torts, 4th ed. p. 389; and see note, Duty is an essential element of negligence, 12 L. R. A. 322.

III. Principles which determine duty in certain relations.

a. Duty of special care due to persons under disability in general.

It is a rule of the common law, recognized as necessary to good order and to the proper protection of society, that, in the exercise of his legal rights, one is bound to observe ordinary care not to injure others. As subjects of this general duty, persons under disability constitute no exception. And one who is guilty of a breach of such duty as to them may be held liable for the consequences, although his act or omission might have been attended with less serious results, or might not have resulted in injury at all, but for the injured

R. R. Co. v. Derby, 14 How. 468, 14 L. ed. 502; Whitesides v. Southern R. Co. 128 N. C. 229, 38 S. E. 878; Fagg v. Louisville & N. R. Co. 111 Ky. 30, 54 L. R. A. 919, 63 S. W. 580; Dyche v. Vicksburg, S. & P. R. Co. 79 person's previous disability. But the law goes further, and imposes the duty of exercising special care toward persons more or less disabled from caring for themselves. What is ordinary care is dependent upon circumstances. When one is brought into relation to a child, he is bound to use more prudence than in dealing with an adult, and, if a person is blind or deaf, or unconscious from any cause, he cannot be treated as one in the full possession of his faculties, if his disability is known. Under such circumstances, ordinary care is such as men of ordinary prudence would exercise in a like situation. And when the law requires a railroad company to check the speed of its train upon discovering a child or person in a helpless condition on the track, when the sounding of the whistle would be an exercise of sufficient care as to a healthy adult, in the possession of all his faculties, it is no more than ordinary prudence and a due regard for human life dictate. As some of the authorities observe, it is a just and beneficent principle, running through all the cases, that what humanity requires must be done by those who act with knowledge of another's helplessness.

Upon the foregoing propositions the authorities are agreed. But when we turn to the cases involving some limitation upon this duty, as where the party under disability is a trespasser, and to those cases where the disability exposing a party to peril is due more or less to his own negligence, we are met with a great contrariety of opinion. These diverse opinions are collected in this note, and it will help us better to appreciate their respective values as authority if we first consider the principles upon which they are based.

b. Limitation upon this duty where disabled party is trespasser.

Some of the authorities, in considering the circumstances bringing persons into relation to each other, and the duty imposed thereby, seem to give undue prominence to the wrong of a merely technical trespass, and fail sufficiently to recognize the element of knowledge, with reference to the presence of another within the range of one's action, and the duty that comes with knowledge, under the general obligation to humanity, and the respect due the natural right of every man to the enjoyment of life. It is accordingly held by some courts that the only duty owing a disabled trespasser is to refrain from wilfully or wantonly injuring him, and

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