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Miss. 361, 30 So. 711; Atchison, T. & S. F., attempted proof of such negligence. The peR. Co. v. Weber, 33 Kan. 554, 52 Am. Rep. 543, 6 Pac. 877.

tition, however, contained an averment that the injured person had one leg and an arm cut off by the car wheels, and that the serv

Smith, J., delivered the opinion of the ants of the railway company failed to call a surgeon, or to render him any assistance after the accident, but permitted him to remain by the side of the tracks and bleed to death. Under this charge of negligence a recovery was had.


This was an action brought by Adeline Cappier, the mother of Irvin Ezelle, to recover damages resulting to her by reason of the loss of her son, who was run over by a car of plaintiff in error, and died from the injuries received. The trial court, at the close of the evidence introduced to support a recovery by plaintiff below, held that no careless act of the railway company's servants in the operation of the car was shown, and refused to permit the case to be considered by the jury on the allegations and

that no liability arises from the omission of ordinary care to avoid injury, even after the presence of the trespasser and his helpless condition are known. Griswold v. Boston & M. R. Co. 183 Mass. 434, 67 N. E. 354; Mason v. Missouri P. R. Co. 27 Kan. 83, 41 Am. Rep. 405.

But the preponderance of authority is with the position that a merely technical trespasser does not forfeit his right to the enjoyment of life; and that, while he assumes the risk of dangers incident to the condition of premises upon which he trespasses, and of instrumentalities with which he comes in contact, yet, when his presence becomes known to the owner, he comes at once under the protection of the rule that one must use ordinary care to prevent his conduct resulting in injury to another. As Lord Denman has well said: "Everyone in the conduct of that which may be harmful to others, if misconducted, is bound to the use of due care and skill, and the wrongdoer is not without the pale of the law for this purpose." Colchester v. Brooke, 7 Q. B. 377. It is relation, accompanied with knowledge, or the presumption of knowledge, which limits or conditions the freedom of one's right of action. A man who is alone in a wilderness is free to act as he pleases; but when he transfers his action to an inhabited locality, where he knows, or has reason to believe, there are persons liable to be affected by his acts, he must have respect to their right of security, and must so qualify his conduct as to avoid doing them harm. Like wise, the owner of premises may presume that he is alone in their enjoyment, except as he may have given invitation to others, and is entitled to the freedom of action which his exclusive possession warrants. But when that presumption is overcome by knowledge of another's presence, the duty of using ordinary care to avoid injury to such person immediately arises. The farmer who discovers a trespasser crossing his field, and the railroad company that observes a man upon its right of way, have no more reason to omit ordinary care to prevent their affirmative acts resulting in injury to the person thus trespassing upon their premises, than they have toward one who is lawfully there. This knowledge of a trespasser's presence, however, is not sufficient to impose the duty of showing him special care because of some disablilty which increases his danger, unless his disability also is known, or is sufficient

While attempting to cross the railway tracks, Ezelle was struck by a moving freight car pushed by an engine. A yardmaster in charge of the switching operations was riding on the end of the car nearest to the deceased, and gave warning by shouting to him. The warning was either too late, or no heed was given to it. The engine was

ly evident to the senses to charge one with knowledge. Therefore, the duty of exercising such special care as the circumstances may require to avoid injury to a disabled trespasser is conditioned upon knowledge of his presence and knowledge of his disability.

c. Duty limited by negligence of person under disability.

Again the rule denying relief to a party injured, where his own negligence concurred with that of the defendant in causing the injury, seems to be regarded by some authorities as based upon the theory that the negligence of the plaintiff in such case "justifies or excuses the negligence of the defendant." Consistent with this theory, it is held that no duty is owing a person negligently coming within the range of another's action, save to refrain from wilfully or wantonly injuring him. Hence, these authorities deny to the person injured any remedy, even when his negligence was not the proximate cause of his injuries; as where the injury to which his negligence subjected him might have been avoided by the exercise of ordinary care on the part of the defendant.

But the better reason for the rule denying relief in cases of concurring negligence is that the courts will not undertake an apportionment of the damage where an injury occurs through the concurring acts of negligence of both parties. Needham v. San Francisco & S. J. R. Co. 37 Cal. 409, 419; Isbell v. New York & N. H. R. Co. 27 Conn. 393, 71 Am. Dec. 78; Trow v. Vermont C. R. Co. 24 Vt. 487, 494, 58 Am. Dec. 191; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570, 581; Simpson v. Hand, 6 Whart. 311, 36 Am. Dec. 231. The party inflicting Injury is allowed to escape judgment, "because, from the nature of the case, it is unable to ascertain what share of the damages is due to his negligence. He is both legally and morally to blame, but there is no standard by which the law can measure the consequences of his fault, and therefore, and therefore only, he is allowed to go free of judgment." Hence, where the negligence of the injured party is not the proximate cause of his injuries, he may be entitled to damages, notwithstanding his negligence, because the reason for denying him relief, where the negligence of both parties concurs in producing the injury, does not exist.

stopped. After the injured man was clear, at 5:35 P. M.; that immediately one of the of the track, the yardmaster signaled the railway employees telephoned to police headengineer to move ahead, fearing, as he tes- quarters for help for the injured man; that tified, that a passenger train then about due the ambulance started at 6:05 P. M., and would come upon them. The locomotive and reached the nearest hospital with Ezelle at car went forward over a bridge, where the 6:20 P. M., where he received proper medgeneral yardmaster was informed of the ac- ical and surgical treatment. cident, and an ambulance was summoned by telephone. The yardmaster then went back where the injured man was lying, and found three Union Pacific switchmen binding up the wounded limbs and doing what they could to stop the flow of blood. The ambulance arrived about thirty minutes later, and Ezelle was taken to a hospital, where he died a few hours afterwards.

In answer to particular questions of fact, the jury found that the accident occurred

What duty, then, does the law impose upon one who is brought into relation to another through the latter's negligence? According to the preponderance of authority, it requires that he shall be in the exercise of ordinary care in the immediate action in which he is engaged; and, if that action is calculated to create circumstances which imperil human life, he must be on the lookout in places where persons may be reasonably expected to be present to prevent his action resulting in injury. The purpose of such lookout being to discover situations requiring preventive effort to avoid injury, its omission is negligence, which will subject one to liability, although the danger to which the injured party was subjected was unknown to him, if it might have been known in time to avoid injury, had the proper lookout been maintained. And, of course, where the danger of the negligent party is discovered, ordinary care requires preventive effort to avoid the infliction of injury according to the demands of the situation. In a word, the law holds all persons to the observance of ordinary care always when brought into relation to others, and charges them with the consequences of the failure of that duty, if such negligence, and not the preceding negligence of the injured party, is the proximate cause of the injury.

The leading authority for this doctrine is the early case of Davies v. Mann, 10 Mees. & W. 546, where it appeared that the plaintiff, hav ing fettered the fore feet of his donkey, turned it into the highway. Thereafter the defendant coming down a slight descent with a team and wagon, at a smartish pace, ran against the donkey, and knocked it down, and, the wheels passing over it, it died from its injuries. Parke, B., said: "Although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road."

The doctrine of this case is now generally accepted by the courts of the United States. See note, Doctrine of last clear chance," 55 L. R. A. 418.

The foregoing rules respecting the care due to trespassers and persons guilty of contributory negligence are applicable to situations

Judgment against the railway company was based on the following question and answer:

Q. Did not defendant's employees bind up Ezelle's wounds, and try to stop the flow of blood, as soon as they could after the accident happened?

A. No.

The lack of diligence in the respect stated was intended, no doubt, to apply to the yardmaster, engineer, and fireman in charge where the person to be affected is suffering from some disability, with this addition, that, where such person's disability is known, or with or dinary care might have been discovered, where the duty to discover exists, then ordinary care to avoid injury includes such an increased measure of care as an ordinarily prudent person would exercise, in view of the helplessness of the person to be affected, and the danger to be avoided. The law will not tolerate the infliction of unnecessary injury upon one who has negligently brought himself within the range of the otherwise lawful action of another. And where such person is not only less culpable, because of infirmities which render it more difficult for him to avoid the place of danger. or because of some disability which has overtaken him after coming to such place, but is also less able to escape from the danger into which he has come, there is the more reason for requiring those coming into relation to him to exercise due care to avoid doing him harm, and to so qualify their action as the nature of the disability may demand, if the same has come to their knowledge.

d. Another's negligence not excuse for wilful or wanton injury.

While some authorities deny the existence of the duty of observing ordinary care to avoid injury either to a trespasser or to one guilty of contributory negligence, even as to affirmative acts calculated to imperil human life, all courts agree that such circumstances are never an excuse for an injury wilfully or wantonly inflicted.

The elements necessary to characterize an injury as wilfully inflicted in such cases are: (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another: (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Such omission, of course, may arise from a deliberate purpose to inflict injury, but it is more commonly due to that reckless disregard for the safety of others to which the law imputes an intention to do harm. Western Maryland R. Co. v. Kehoe, 83 Md. 434, 452, 35 Atl.

of the car and engine. These facts bring us to a consideration of the legal duty of these employees toward the injured man after his condition became known. Counsel for defendant in error quote the language found in Beach on Contributory Negligence, 3d ed. § 215, as follows: "Under certain circumstances, the railroad may owe a duty to a trespasser after the injury. When a trespasser has been run down, it is the plain duty of the railway company to render whatever service is possible to mitigate the severity of the injury. The train that has occasioned the harm must be stopped, and the injured person looked after, and, when it seems necessary, removed to a place of safety, and carefully nursed, until other relief can be brought to the disabled person."

90; West Virginia C. & P. R. Co. v. State, 96 Md. 652, 667, 61 L. R. A. 574, 54 Atl. 669; Gulf, C. & S. F. R. Co. v. Lankford, 88 Tex. 499, 31 S. W. 355.

The distinction between mere negligence toward a person in peril, after his situation has been discovered, and the wilful or wanton infliction of an injury, is frequently overlooked, and is the occasion for some conflict among the authorities. It is perhaps true, also, that some of the cases call for some discrimination in determining whether an act is merely negligent or wilful. And the question is troublesome mostly to those courts which refuse to apply the doctrine of proximate cause to plaintiff's negligence. But that such distinction exists is evident. For instance, a railroad company has been held, liable for an injury inflicted through the negligent refusal of an engineer to obey a signal to stop his train upon the discovery by the brakeman of a sleeping boy under a car. If, however, the brakeman who made the discovery in such case had omitted his efforts to have the train stopped after seeing the boy's peril, the injury would have been wilful. Garza v. Texas Mexican R. Co. (Tex. Civ. App.) 41 S. W. 172. It is likewise apparent that the duty to a person in peril, after the discovery of his situation, may be performed in such a manner as to render the guilty party liable as for negligence, when his conduct could not be denominated as wanton or wilful. Thus, in Donahoe v. Wabash, St. L. & P. R. Co. 83 Mo. 543, where a locomotive engineer, seeing children near the track, and women running toward his train, and excitedly waving their hands, a quarter of a mile distant, put his hand on the throttle. "thinking something might turn up," but made no effort to check the speed of the train, until he discovered a child two and onehalf years old on the track about 250 feet in front of him, the railroad company was held liable for negligence and carelessness in disregarding warnings with reference to a condition of danger, which clearly gave notice, and demanded that the train should be checked or stopped. And there are numerous authorities which hold that one may be liable for a mere inadvertence in his conduct toward a trespasser or person guilty of contributory negligence after the danger of such person has been discovered. See, among other authorities cited in this note, Louisville & N. R. Co. v. Vanarsdell, 25 Ky. L. Rep. 1432, 77 S. W. 1103; Clark v. Wilming

The principal authority cited in support of this doctrine is Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545. The court in that case first held that there was evidence enough to justify the jury in finding that the operatives of the train were negligent in running it too fast over a road crossing without sounding the whistle, and that the number of brakemen was insufficient to check its speed. Such negligence was held sufficient to uphold the verdict, and would seem to be all that was necessary to be said. The court, however, proceeded to state that, from whatever cause the collision occurred, it was the duty of the servants of the company, when the man was found on the pilot of the engine in a helpless and insensible condition, to remove him, and


ton & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43; Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475; Heddles v. Chicago & N. W. R. Co. 77 Wis. 228, 20 Am. St. Rep. 106, 46 N. W. 115; St. Louis, I. M. & S. R. Co. v. Wilkerson, 46 Ark. 513; Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67.

e. Summary.

The sum of the foregoing principles, and of the preponderance of authority under the decisions collected in this note, may be concisely stated as follows:

That the duty of exercising ordinary care to prevent injury resulting from one's lawful action arises immediately when one comes into relation to others. That this relation may be actual, as where persons are known to be present within the range of one's action, or it may be prospective, as where the action occurs in a place where others may reasonably be expected to be present. That, when the relation is prospective in its nature, ordinary care requires a due degree of caution in one's action, in proportion to the probability of others being affected, and in mere anticipation of their presence. It requires, further, that the person acting be on the lookout to discover the presence of others within the range of his action. And for an injury resulting from the failure of this duty, or from want of due care in the performance of the action causing injury, one may be liable in damages, although he was without knowledge of the injured person's presence, and although the injured party was guilty of negligence not the proximate cause of his injury. That this prospective relation cannot exist as to trespassers, because persons cannot reasonably be expected to be present in places where they have no right to be; and, therefore, no duty arises as to trespassers until one is brought into actual relation to them through knowledge of their presence. That, finally, when one is brought into actual relation to another, he is bound to use ordinary care to avoid injury to him, whether the latter is a trespasser or not, and although his negligence has contributed to the creation of a situation requiring preventive effort on the part of others to avoid injury; and neither of these circumstances can in any event justify a wilful or wanton injury. That in all these varied relations, except that imposing the duty of dis

do it with proper regard to his safety and the laws of humanity. In that case the injured person was taken in charge by the servants of the railway company, and, being apparently dead, without notice to his family, or sending for a physician to ascertain his condition, he was moved to defend ant's warehouse, laid on a plank, and locked up for the night. The next morning, when the warehouse was opened, it was found that during the night the man had revived from his stunned condition, and moved some paces from the spot where he had been laid, and was found in a stooping posture, dead, but still warm, having died from hemorrhage of the arteries of one leg which was crushed at and above the knee. It had been proposed to place him in the defendant's

covery, the disability of the party to be affected by one's action imposes the duty of exercising greater care to avoid injury, according to the demands of the situation, than is required toward persons generally. But, since a person under disability is an exception to the condition of persons generally, the duty of observing special care as to such person does not arise until his disability is known, or until circumstances are presented which are sufficient to charge one with knowledge thereof; and until such disability is known, or may be known by the exercise of ordinary care, where the duty to discover exists, one has the right to presume that a person with whom he is brought into relation is in the possession of all his faculties, and has the ability of people generally to care for himself. That, while the duty to discover another's disability is imposed at places where persons are likely to be present. the measure of care required under such circumstances is no greater than that imposed as to persons generally, until the disability is known. That this duty of exercising special care in respect to helpless persons is applicable to situations where one's action has resulted in injury to another, either with or without his fault, and requires the removal of the injured party to a place of safety, where his injury may receive proper attention, to prevent aggravation of the injury.

station house, which was a comfortable building, but the telegraph operator objected, and directed him to be taken into the warehouse, a place used for the deposit of old barrels and other rubbish. The Maryland case does not support what is so broadly stated in Beach on Contributory Negligence. It is cited by Judge Cooley, in his work on Torts, in a note to a chapter devoted to the negligence of bailees (chap. 20), indicating that the learned author understood the reasoning of the decision to apply where the duty began after the railway employees had taken charge of the injured per


After the trespasser on the track of a railway company has been injured in collision with a train, and the servants of the company have assumed to take charge of

IV. Duty to avoid injury.

a. To the sick and infirm.

The obligation to exercise greater care to avoid injury to the sick and the infirm, than is required toward the strong, is not based upon sentiment, other than the value which the law commonly sets upon human life. It is simply the recognition of a measure of helplessness in such persons, which must be met with a care commensurate with the necessities of their situation. Bray v. Latham, 81 Ga. 640, 8 S. E. 64; Cincinnati, I. St. L. & C. R. Co. v. Cooper, 120 Ind. 469, 473, 6 L. R. A. 241, 16 Am. St. Rep. 334, 22 N. E. 340.

But the greater care demanded in such cases is not different in degree from that required to ward those having no bodily infirmity. In either case only ordinary care is required, as measured by the demands of the particular situation. Culbertson v. Holliday, 50 Neb. 229,

69 N. W. 853; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570, 581; Sleeper v. Sandown, 52 N. H. 244; Stanley v. Cedar Rapids & M. C. R. Co. 119 Iowa, 526, 532, 93 N. W. 489.

"A sick or aged person, a delicate woman, a lame man, or a child, is entitled to more attention and care from a railroad company than one in good health and under no disability. They are entitled to more time in which to get on or off the cars; they are entitled to more consideration when crossing a street, to the end that the cars shall not run over them." Sheridan v. Brooklyn City & N. R. Co. 36 N. Y. 39, 93 Am. Dec. 490.

The old, the lame, and the infirm are entitled to the use of the streets; and more care must be exercised toward them by engineers in charge of railroad trains than toward those who have better powers of motion. If an aged or infirm person is seen upon the track, and it appears that he will not escape in time to avoid injury, it is the duty of the engineer to stop the train, if he can, so that the disabled person can make his escape. O'Mare v. Hudson River R. Co. 38 N. Y. 445, 98 Am. Dec. 61; Missouri P. R. Co. v. Weisen, 65 Tex. 443.

It is the duty of a street railway company to run its cars with due regard to the rights of the infirm, of aged persons, and of children of tender years. All of these classes of persons have the right to use the public streets, and the railroad company is liable for the damages they sustain, if it does not use due care, in proportion to the danger, to prevent injury to the various classes. Indianapolis Street R. Co. v. Schomberg (Ind. App.) 71 N. E. 237.

A railroad company operating its trains along a public thoroughfare, and knowing that old and infirm persons, children, and drunken persons are liable at all times to be abroad on the street, must use every precaution to avoid inflicting injury. Illinois C. R. Co. v. Hutchinson, 47 III. 408.

Where a person upon a railroad track is taken with a sudden and violent sickness and prostration, it is the duty of those in charge of a railroad train to exercise ordinary care, not only to protect such person when discovered in a helpless condition upon the track, but also to ascertain whether he is upon the track in such condition. Yoakum V. Mettasch (Tex. Civ. App.) 26 S. W. 129.

A railroad company owes to a man lying insensible upon a railroad track the duty to avoid

him, the duty arises to exercise such care in of worthy charity, or for faltering in the his treatment as the circumstances will al- bestowment of brotherly love on the unforlow. We are unable, however, to approve tunate, penalties are found not in the laws the doctrine that when the acts of a tres- of men, but in that higher law, the violation passer himself result in his injury, where of which is condemned by the voice of conhis own negligent conduct is alone the cause, science, whose sentence of punishment for those in charge of the instrument which in- the recreant act is swift and sure. In the flicted the hurt, being innocent of wrong-law of contracts it is now well understood doing, are nevertheless blamable in law if that a promise founded on a moral obligathey neglect to administer to the sufferings tion will not be enforced in the courts. of him whose wounds we might say were Bishop states that some of the older authorself-imposed. ities recognize a moral obligation as valid, and says: "Such a doctrine, carried to its legitimate results, would release the tribunals from the duty to administer the law of the land, and put in the place of law the varying ideas of morals which the changing incumbents of the bench might from time to

With the humane side of the question courts are not concerned. It is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance. For withholding relief from the suffering, for failure to respond to the calls

injuring him, if, by the exercise of due care, his situation can be discovered in time to stop the train; and the failure to make such dis covery, and to stop the train, because of the unlawful speed at which the train is traveling. is negligence. Hankerson v. Southwestern R. Co. 59 Ga. 593, 61 Ga. 114, 72 Ga. 182.

A railroad company may be liable for running over an idiot at a crossing, if its employees in charge of the train saw him upon the track. or by the exercise of ordinary care could have seen him, in time to stop the train, and had actual knowledge, or reasonable ground for the belief, that, on account of some mental or physical infirmity, the idiot could not step off the track in time to avoid injury. Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320.

But where an engineer at once gives the alarm signals upon discovering a man lying upon the track, reverses the engine, and does all in his power to avoid running over him, no liability, as for gross negligence, arises, although the man's presence on the track is due to his having fallen there in an unconscious condition from the effects of a fever. Missouri P. R. Co. v. Brown (Tex.) 18 S. W. 670.

It is well known that women when pregnant are more likely to be nervously affected, and that any fright or injury sustained under such circumstances is liable to be attended with serious consequences. Therefore, where a landlord entered upon the premises of his tenant. and, in the presence of the latter's wife, whom he knew to be far advanced in pregnancy, made an assault upon some negroes, and his conduct so frightened the lessee's wife that a miscarriage and consequent ill health resulted, he was held liable for these consequences. Hill v. Kimball, 76 Tex. 210, 7 L. R. A. 619, 13 S W. 59.

In the foregoing cases the negligence for which a liability was imposed is based upon the failure to exercise the greater care which the known physical infirmity of the person injured manifestly demanded. But the physically infirm are, likewise, entitled to exemption from the consequences of another's omission to exercise the care due to persons generally, even though their disabilities are not known to the negligent party. One cannot escape from lia bility for the consequences of his negligent act because the person injured was already crip pled or suffering from some disease which

tended to aggravate or enlarge the results of his negligence. If he has been guilty of an act which is negligent in its nature as to persons generally, he is liable for the consequences of his negligence to a person under disability, although the same consequences might not have attended the action if the person affected had been sound in body.

"The duty of care, and of abstaining from injuring another, is due to the weak, the sick, the infirm, equally with the healthy and strong, and when that duty is violated the measure of damage is the injury inflicted, even though that injury might have been aggravated, or might not have happened at all but for the peculiar physical condition of the person injured." In this case it was held that a child's inheritance of an hysterical diathesis in no manner affected her right to protection from injury through defendant's negligence. Lapleine v. Morgan's L. & T. R. & S. S. Co. 40 La. Ann. 661, 1 L. R. A. 378, 4 So. 875; Tice v. Munn, 94 N. Y. 621.

Where a person partially recovered from a fractured limb, which is still weak and more susceptible to fracture than it would have been if the injury had not occurred, receives an injury resulting in a second fracture, the party causing the injury cannot escape liability for the consequences of his fault because such injury may have been aggravated, or more easily caused, by reason of the first fracture. Driess v. Frederich, 73 Tex. 460, 11 S. W. 493.

The duty of municipal corporations to keep their streets in reasonable repair extends to the sick and infirm, as well as to the healthy and strong. All have a right to use the streets, and to rely upon the performance of this duty. A person is not to be precluded, therefore, from recovering for injuries resulting from a breach of this duty, because at the time he was suffering from some disability which rendered him more susceptible to injury than one who is without physical infirmity, if he was in the exercise of ordinary care, as measured by the conduct of persons of ordinary prudence, when under like disability, and under similar circumstances.

The sidewalks of the city are for the use of those with organic predisposition to disease, as well as for the healthy and robust, and the former are entitled to have them made reasonably safe for such use. Any injuries which they may sustain by reason of defects in such sidewalks, which result in aggravating an already

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