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available means and facilities for the safety | to Minneapolis, and plaintiff having refused of the goods.

to accept the corn in its damaged condition, Nelson v. Great Northern R. Co. 28 Mont. caused the same to be sold, and tendered 297, 72 Pac. 642; Pruitt v. Hannibal & St. plaintiff the proceeds, less freight charges. J. R. Co. 62 Mo. 527.

Plaintiff brought this action to recover the An act of God is no defense if the goods value of the corn, alleging in its complaint would not have been exposed to the accident that it was damaged and injured while in the but for an unreasonable delay in their ship- possession of defendant, through its negliment.

gence and carelessness. The delivery of the Armentrout v. St. Louis, K. C. & N. R. corn to defendant for transportation, and Co. 1 Mo. App. 158; Michigan C. R. Co. v. that it was damaged while in defendant's Curtis, 80 Ill. 324; Merchants' Despatch possession, are admitted in the answer, but Transp. Co. v. Kahn, 76 III. 520; Wald v. it is alleged in defense that the damage was Pittsburg, C. C. & St. L. R. Co. 162 Ill. 545, caused by an act of God; that an unusual 35 L. R. A. 356, 53 Am. St. Rep. 332, 44 N. and extraordinary rainfall occurred at KanE. 888; Ransier v. Minneapolis & St. L. R. sas City and vicinity at the time the car was Co. 32 Minn. 331, 20 N. W. 332; Dugan v. in its yards, causing the river to overflow its St. Paul & D. R. Co. 40 Minn. 544, 42 N. W. banks and submerge defendant's yards, the 538; Perry v. Tozer, 90 Minn. 341, 101 Am. occurrence and extent of which could not St. Rep. 416, 97 N. W. 137; Ouverson v. have been foreseen or anticipated. The trial Grafton, 5 N. D. 289, 65 N. W. 676; Cook v. court instructed the jury in part that, if the Minneapolis, St. P. & 8. Ste. M. R. Co. 98 corn was destroyed by an act of God, unacWis. 624, 40 L. R. A. 457, 67 Am. St. Rep. companied by the concurrent negligence of 830, 74 N. W. 561; Walrod v. Webster Coun- defendant, plaintiff could not recover; but, ty, 110 Iowa, 349, 47 L. R. A. 480, 81 N. W. in effect, left to the jury to say whether the 598; Selleck v. Lake Shore & M. S. R. Co. delay in forwarding the car was negligence, 93 Mich. 375, 18 L. R. A. 154, 53 N. W. 556; and whether such negligence concurred in Lutz v. Atlantic & P. R. Co. 6 N. M. 496, 16 causing the damage. The jury returned a L. R. A. 819, 30 Pac. 912; Salisbury v. Her verdict for plaintiff, and defendant appealed chenroder, 106 Mass. 458, 8 Am. Rep. 354. from an order denying its alternative mo

tion for judgment notwithstanding the verBrown, J., delivered the opinion of the dict or for a new trial. court:

The only assignments of error requiring The facts in this case are as follows: On consideration are those which challenge the or about May 12, 1903, plaintiff delivered to charge of the trial court, in which the jury defendant at Stafford, Kansas, a car load was instructed that, if the negligent delay of broom corn, to be transported to Minne- of defendant in forwarding the car concurred apolis, this state. The route of transporta in causing the injury or loss complained of. tion was by way of Kansas City, and de- defendant was liable. It is contended with fendant was to forward the car at that much earnestness and ability by defendant's. point, the terminus of its line, over the Chi- counsel that, notwithstanding there might cago Great Western road. The car reached have been negligent delay in forwarding the the freight yards of defendant at Kansas car from Kansas City to Minneapolis, but City on May 23d, but defendant wholly failed for which the corn would not have been damand neglected to send it forward or notify aged, yet the damage complained of resulted the Chicago Great Western Company of its proximately from the flood, an act of God, arrival, though the evidence tends to show and that, as plaintiff failed to show that dethat immediately after the arrival of the car fendant was chargeable with neglect in not. at Kansas City defendant sent a messenger foreseeing or guarding against the danger, to communicate the fact to the Great West- no recovery can be had. The question preern company, and that it was to be forward sented, then, is whether a common carrier ed over its line, but through carelessness the is liable to the owner of goods delivered to messenger notified the Missouri Pacific com- him for transportation, which are damaged pany instead, and the Great Western was or destroyed by an act of God while in his not informed of the matter at all. In con- possession, in consequence of a negligent desequence of the neglect of the messenger, the lay in forwarding them, whether the act of car remained in the yards of defendant until God could reasonably have been anticipated it was submerged by water in the great or not. The question is an important one, flood occurring during the last days of May and the authorities are not in harmony. We and the first days of June at Kansas City, have considered it with care in all its bear. and the corn substantially destroyed. After ings, and reach the conclusion that the car. the waters of the flood had receded, defendrier is liable. ant, having first offered to forward the car As a general rule, applicable to all cases.

of negligence, if damage is caused by the dered defendant liable, the case must be reconcurrent force of defendant's neglect and versed. 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 deliveredt 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 in. there 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. Intion he must show that he was himself free other states the opposite doctrine is settled from fault at the time. Ilis 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 con of such delay, he must show, to exempt him. cerned, only in cases involving property not self from liability, that the delay did not

In perishable. The property in the case at bar contribute to, or concur in, the injury. 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 unrea

his negligence in part concurs, he is liable.

See also Dunson v. Neo York C. R. Co. 3 sonable delay, as it was required by law to do. So the question is, Was the negligent and applied in other states.

Lans. 265. This doctrine has been followed

In Wolf v. delay of defendant in forwarding the car one

American Exp. Co. 43 No. 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 car. the 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

Wald v. Pittsburg, C. C. & St. L. R. Co. 162 neapolis & St. L. R. Co. 91 Minn. 229, 103 Ill. 545, 35 L. R. A. 356, 53 Am. St. Rep. Am. St. Rep. 507, 97 N. W. 893. 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 wa3 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 for. transported 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 Neus & 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 & 0. 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 procrastiproximate cause of the loss, or that it con

nation is overtaken by an overpowering curred 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 Other cases, more or less in point, may be for his negligence, the loss would not have found collected in 36 Am. St. Rep. 339. See and he should not be relieved by an applica

occurred, no sound reason will excuse him, also Deming v. Grand Trunk R. Co. 48 N. II. 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 I11. 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 wrong. 41 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. llannibal & St. J. R. Co. 62 Mo. 527. And Our conclusions are that the trial court the rule was, in effect, laid down, though the correctly instructed the jury, that the recprecise question here under consideration ord presents no reversible errors, and the was not there involved in Jones v. Min. 'order appealed from is affirmed.

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*1. A trespasser on a railway track was

struck by a moving car, to which an en- dotte County to review a judgment in gine was attached, and injured without fault favor of plaintiff in an action brought to reon the part of the servants of the company.

cover damages for the alleged negligent Held, that the failure of the railway employees operating the car and engine to take killing of plaintiff's son. Reversed. charge of the wounded man and give him The facts are stated in the opinion. care and attention was not the violation of Messrs. N. H. Loomis, R. W. Blair,

a legal duty for which the company was liable. and H. A. Scandrett, for plaintiff in 2. The case at bar is distinguishable

from those where the servants of the railway Even if the deceased had been a passen. *Headnotes by SJIITII, J.

ger, and had been hurt without fault of the

error:

NOTE.-Care due to sick, infirm, disabled, and VIII. Presumptions in absence of knowledge otherwise helpless persons, with whom no

of disability. contract relation is sustained.

a. Right to presume person in peril

will help himself, 550. 1. Scope of note, 513.

b. Limitations upon exercise of such II. No duty as between strangers, 513.

presumption. JII. Principles which determine duty in cer

1. Warning of danger generally tain relations.

necessary

as basis for prea. Duty of special care due to persons

sumption, 552. under disability in general, 514.

2. Presumption may be repelled b. Limitation upon this duty where dis

by circumstances,552. abled party is trespasser, 514.

3. "Last momentto which prec. Duty limited by negligence of per

sumption may be indulged, son under disability, 515.

554. .
d. Another's negligence not ercuse for

I. Scope of note.
wilful or wanton injury, 516.
e. Summary, 517.

The authorities upon the precise question de4V. Duty to avoid injury.

termined in UNION P. R. Co. v. CAPPIER are so a. To the sick and infirm,518.

few that it may be helpful to have the question b. To persons of defective sight or

considered in the light of established legal prinhearing, 521.

ciples, and their application to somewhat simc. To persons in helpless situations.

ilar situations, riz., those in which a person's 1. Sleeping on railway track, 523. ability to care for himself is more or less im2. Foot caught in railway track, paired because of some disability from which he 525.

suffers. The discussion will not be extended, 3. Walking on railway trestle, 526. however, to the consideration of the duty ow. 4. Falling on railway track, 527.

ing to childhood (see note, care required of 5. Driving frightened horse, 528.

railroad companies to prevent injuring small 6. Instances of other helpless sit

children upon the track, 25 L. R. A. 791); nor uation8,532.

to persons in a state of intoxication (see 1'. Duty of persons inflicting injury to care

note. Intorication as affecting negligence, 40

L. for those injured.

R. A. 131); nor to the duty owing a. Obligation to prerent aggravation persons under this and other disabilities where of injury, 533.

a contract relation exists (see notes, Er. b. What is sufficient performance of posure of drunken passenger to danger by ejecobligation,536.

tion from car, 19 L. R. A. 327 ; Duty of carrier VI. Knowledge of disability.

to passengers taken ill during journey, 31 L. R. a. Actual knowledge gencrally neces- A. 261 ; Duty of master to furnish medical aid sary to creation of duty,536.

to serrant, 28 L. R. A. 546; and Authority of b. When mere belief sufficient to im- agent or representative to employ medical ser. pose duty, 538.

vices for employee or other third persons, 20 L. c. Negligent ignorance equivalent to

R. A. 69.5); nor to the question of liability for knowledge, 539.

injuries resulting in the aggravation of preVII. Duty to discover another's peril or dis.

vious disease or injury, except as it arises in ability.

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. Whcther duty exists to tres. ing the injuries, 16 L. R. A. 268).
passer8,543

II. No duty as between strangers.
c. What is sufficient notice of peril or
disability,548.

Is stated in ('VIOX P. R. Co. v. CAPPIER, “it

as

error:

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 negli

Union P. R. Co. v. Beatty, 35 Kan. 265, gence. 57 Am. Rep. 160, 10 Pac. 845; Clark v. Kenney v. Hannibal & St. J. R. Co. 70 Mo. Missouri P. R. Co. 48 Kan. 654, 29 Pac. 252. 1138.

Mr. C. W. Trickett, for defendant in In the case of a trespasser there is no liability unless it is proved by affirmative A railroad company owes a duty to even evidence that the injuries resulted from a trespasser after the injury. culpable negligence after he was noticed Beach, Contrib. Neg. 2d ed. 277; Northern upon the track.

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.

R. R. Co. v. Derby, 14 How. 468, 14 L. ed. The employees of a railroad company do 502; Whitesides v. Southern R. Co. 128 N. not, by reason,, merely, of their employment, C. 229, 38 S. E. 878; Fagg v. Louisville & N. owe any duty to the proprietors of lands R. Co. 111 Ky. 30, 54 L. R. A. 919, 63 S. W. adjoining the company's right of way to' 580; Dyche v. Vicksburg, S. & P. R. Co. 79

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is the omission or negligent discharge of legal person's previous disability. But the law goes
duties only which come within the sphere of further, and imposes the duty of exercising
judicial cognizance." Those duties which are special care toward persons more or less dis-
dictated merely by good morals, or by humane abled from caring for themselves. What is
considerations, are not within the domain of the ordinary care is dependent upon circumstances.
law. Feelings of kindliness and sympathy may When one is brought into relation to a child, he
move the good Samaritan to minister to the is bound to use more prudence than in dealing
needs of the sick and wounded at the roadside, with an adult, and, if a person is blind or
but the law imposes no such obligation, and deaf, or unconscious from any cause, he can.
suffering humanity has no legal complaint not be treated as one in the full possession of
against those who pass by on the other side. his faculties, if his disability is known. Under
Legal rights are relative, and arise out of those such circumstances, ordinary care is such as
complex relations of human society which create men of ordinary prudence would exercise in a
correlative rights and duties, whose performance like situation. And when the law requires a
is so necessary to the good order and well being railroad company to check the speed of its train
of society that the state makes their observance upon discovering a child or person in a help-
obligatory. Unless, therefore, the relation ex less condition on the track, when the sounding
isting between the sick, helpless, or injured and of the whistle would be an exercise of sufficient
those who witness their distress, is such that care as to a healthy adult, in the possession of
the law imposes the duty of providing the nec all his faculties, it is no more than ordinary
essary relief, there is neither obligation to min. prudence and a due regard for human life
ister on the one hand, nor cause for legal com dictate. As some of the authorities observe,
plaint on the other. Allen v. Ferguson, 18 Wall. it is a just and beneficent principle, running
1, 21 L. ed. 854 ;} West Virginia C. & P. R. Co. through all the cases, that what humanity re-
v. State, 96 Md. 652, 666, 61 L. R. A. 574, 54quires must be done by those who act with
Atl. 669 ; Western Maryland R. Co. v. Kehoe, knowledge of another's helplessness.
83 Md. 434, 450, 35 Atl. 90; Com. v. McDuffy, Upon the foregoing propositions the author-
126 Mass. 469; Williams v. Chicago & A. R. Co. ities are agreed. But when we turn to the
135 III. 491, 11 L. R. A. 352, 27 Am. St. Rep. cases involving some limitation upon this duty,
397, 26 N. E. 661 ; O'Leary v. Brooks Elevator as where the party under disability is a tres.
Co. 7 N. D. 554, 41 L. R. A. 677, 75 N. W. 919; passer, and to those cases where the disability
Illinois C. R. Co. v. King, 179 Ill. 91, 70 Am. exposing a party to peril is due more or less
St. Rep. 93, 53 N. E. 552 ; Baltimore & P. R. to his own negligence, we are met with a great
Co. v. Cumberland, 176 U. S. 238, 44 L. ed. 451, contrariety of opinion. These diverse opinions
20 Sup. Ct. Rep. 380 ; Pollock, Torts, 4th ed. are collected in this note, and it will help us
p. 389; and see note, Duty is an essential ele- better to appreciate their respective values as
ment' of negligence, 12 L. R. A. 322.

authority if we first consider the principles

upon which they are based. III. Principles which determine duty in certain relations.

b. Limitation upon this duty where disabled

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

Some of the authorities, in considering the

circumstances bringing persons into relation to It is a rule of the common law, recognized each other, and the duty imposed thereby, seem as necessary to good order and to the proper to give undue prominence to the wrong of a protection of society, that, in the exercise of his merely technical trespass, and fail sufficiently legal rights, one is bound to observe ordinary to recognize the element of knowledge, with care not to injure others. As subjects of this reference to the presence of another within the general duty, persons under disability consti. range of one's action, and the duty that comes tute no exception. And one who is guilty of a with knowledge, under the general obligation to breach of such duty as to them may be held | humanity, and the respect due the natural right liable for the consequences, although his of every man to the enjoyment of life. It is act or omission might have been attended accordingly held by some courts that the only with less serious results, or might not have duty owing a disabled trespasser is to refrain resulted in injury at all, but for the injured | from wilfully or wantonly injuring him, and

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