the latter is the source of his title and claim, is not well founded. The physical injury caused to the person of Mrs. Honey must not be confounded with the legal injury resulting therefrom to her husband. The pain, suffering, and lameness caused by the accident to Mrs. Honey are injuries to her, and do not create a right of action in favor of her husband. When, however, the accident to the wife resulted in depriving the husband of her society, and of her aid in conducting the affairs of his household, and he was put to expense in securing proper surgical care for his wife, then his legal rights were invaded, and for the damages consequent therefrom a right of action accrued to him, which was wholly separate and distinct from that accruing to the wife. The negligence of the wife cannot, therefore, be availed of as a defence to the husband's action on the ground that he stands in the position of an assignee or representative of a right of action accruing to the wife, or upon the theory that his right of action is derived through her. The husband's right of action legally and logically is based upon the negligence of the defendant, resulting in an invasion of his legal rights, and not upon any right of action accruing to or derived from the wife. To hold him responsible, it would be necessary to show that he had personally caused the accident through negligence, or that his agent or servant had been guilty of negligence under such circumstances that he was legally liable therefor. . . . I can see no legal ground for holding that the negligence of Mrs. Honey is a defence to the action on behalf of Mr. Honey.

The motion for new trial is therefore overruled. .

On appeal. Before CALDWELL and SANBORN, Circuit Judges,and THAYER, District Judge.

THAYER, District Judge. . . . The learned judge of the trial Court appears to have been of the opinion that a husband suing for the loss of the services of his wife, and for medical expenses, occasioned by the negligence of a third party, is, in the State of Iowa at least, unaffected by the fact that the wife was guilty of contributory negligence. . . . If we look for the true foundation of the rule in question, we apprehend that it will not be difficult to find. When one person occupies such a relation to another rational human being that he is legally entitled to her society and services and to maintain a suit for the deprivation thereof, he should not be permitted to recover in such an action if the loss was occasioned by the concurring negligence of the person on whose account the right of action is given. If the person from whom the right of service and society is derived is capable of taking ordinary precautions to insure her own safety, and the person to whom the right of service belongs suffers her to go abroad unattended, and to exercise her own faculties of self-preservation, it is no more than reasonable to hold him responsible, in a suit for loss of society and service, for the manner in which such faculties have been exercised. We can conceive of no greater reason for deciding, in a case of this character, that a

husband is not accountable for the conduct of his wife in caring for the safety of her own person, than there would be for holding that he was not chargeable with her contributory negligence in the management of a horse and carriage belonging to the husband, which she had been permitted to use for her own pleasure and convenience. In either case the fact that the husband has permitted the wife to control her own movements and to provide for her own safety, upon the evident assumption that she is competent to do so, should preclude him from asserting, in a suit against a third party for loss of service or society or for a loss of property, that he is not responsible for her contributory fault whereby the loss was occasioned. . . . It has been decided that the husband's contributory negligence is not thus imputable to the wife when she sues in her own right for injuries sustained under the circumstances last mentioned. . . . We do not regard it as material to the decision of the case at bar to determine what the true doctrine is with referere to the point last mentioned, for, even if we should concede it to be the better view that the husband's contributory negligence is not imputable to the wife when she sues in her own right for an injury sustained, still we think that it would not be a reasonable deduction from this rule that the husband is likewise unaffected by the wife's negligence when he sues for loss of services and medical expenses; for, when the wife brings an action for personal injuries which she has sustained, the right of action is in no wise dependent upon the marital relations. She does. not derive her right to sue from that relation, but brings suit like any other person for an injury sustained through the fault of another. . . But on the other hand the husband's right to sue for loss of society and services grows out of the marital relation, and is incident to the rights thereby acquired. The right of action is incident to the marriage. relation, and cannot exist without it. We think, therefore, that, even if it is the better view that the husband's contributory negligence cannot be imputed to the wife when she sues for her own injuries, yet that when the husband brings an action for the loss of society and services, which loss was due to the contributory fault of the wife, her want of ordinary care should nevertheless be imputed to the husband on the grounds heretofore indicated. As the respective rights of action are predicated on different grounds, the one growing out of the marriage relation, and the other existing entirely independent of that relation, there is no logical difficulty in holding the husband accountable for the contributory negligence of the wife, although the latter is not responsible for the contributory fault of her husband. . . . Entertaining these views, the judgment of the Circuit Court is reversed and the case is remanded, with directions to award a new trial.1

1 [PROBLEMS:

The plaintiff boy was employed by a wagon-driver, and rode with him. By the fault of the driver and the defendant, the boy was injured. Is the defendant liable? (1902, Lundergan v. R. Co., 203 Mass. 460, 89 N. E. 625.)

The plaintiff's intestate went out in a rowboat with T. and two young ladies,

SUB-TOPIC B. DEFENDANT'S FAULT BASED ON STATUTE

654. CURRY v. CHICAGO & NORTHWESTERN RAILWAY COMPANY

SUPREME COURT OF WISCONSIN. 1878

43 Wis. 665

APPEAL from the Circuit Court for Sauk County.

Action for the value of a cow alleged to have strayed upon defendant's railroad at a point where the same had never been fenced, and to have been there killed by a train, without fault on plaintiff's part. Answer, a general denial, and an averment of contributory negligence.

On t' trial, it was stipulated that "plaintiff lived about threefourths of a mile from Ableman's station (a station on defendant's road), and about the same distance from the place where the cow was injured;" and that "there were about 300 or 400 acres of uninclosed lands about the place of injury and the station." Plaintiff admitted that his cow was running at large on the commons or uninclosed lands and public highway near Ableman's station for the purpose of pasturing; that it was his common practice to allow her to run at large for that purpose; and that defendant was guilty of no other negligence than its failure to fence. Defendant admitted that its road had been in operation for five years at the place where the injury occurred; that the track at that place "was not fenced as the statute directs; " that the premises there were not part of the depot grounds, but were "open common, open to the public highway;" that the cow was killed by a

T. rowing and taking charge. By T.'s and the defendant's negligence, the boat was overturned in a collision with the defendant's steamer, and the plaintiff's intestate was drowned. Is the defendant liable? (1904, Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799.)

The plaintiff was an employee of a coal-dealer, and rode on the wagon of one M., who was delivering the coal; the plaintiff was to help unload the coal at the buyer's premises. By M.'s and the defendant's negligence the plaintiff was hurt in a collision. Is the defendant liable? (1901, Murray v. Ice Co., 180 Mass. 165, 61 N. E. 1001.)

The plaintiff was returning from church in a wagon driven by her husband, and was injured by the negligence of the defendant and her husband. Is the defendant liable? (1901, Bailey v. Centerville, 115 Ia. 271, 88 N. W. 379.)

NOTES:

"Negligence in automobile passenger." (A. L. Reg., LIX, 112.) "Negligence: not imputed to passenger." (C. L. R., VII, 141.)

"Imputing negligence of driver of a vehicle to passengers." (M. L. R., I,

146.)

"Imputed Negligence - To passenger." (M. L. R., V, 486.)

"Right of bailor against person injuring chattel in possession of bailee contributing to injury." (Y. L. J., XX, 61.)

"Contributory negligence — Imputation." (Y. L. J., XX, 331.)]

train on its road; and that she was worth the amount claimed by the plaintiff as damages. . . .

Defendant's motion for a nonsuit was denied. The judge refused to instruct the jury at defendant's request, that "the fact that plaintiff turned the cow out to pasture in the public highway and uninclosed lands through which defendant's railway runs, about three-fourths of a mile from his residence, knowing that the railway was unfenced, was gross negligence on his part." He instructed the jury, in substance, that if the cow strayed upon defendant's road, at a point where the company was bound by statute to maintain a fence, and such fence would have prevented her from going upon the road, defendant was liable, unless plaintiff was guilty of a want of ordinary care in permitting her to be upon the lands from which she passed upon the track; and that it was for them to determine whether, under all the circumstances of this case, he was guilty of such want of ordinary care.

The plaintiff had a verdict and judgment; and defendant appealed. For the appellant, a brief was filed by Smith & Lamb, and the cause was argued orally by Mr. Lamb. They contended, 1. That, as the facts were undisputed, it was the duty of the Court to declare the law upon them. . . . 2. That the owner of domestic animals who turns them into the highway to pasture, violates the law, and the animals are trespassers while in the highway, or when they pass on adjoining land, even if unfenced. . . . 3. That contributory negligence of the plaintiff is a defence in such a case; that the liability declared by the statute (sec. 1, ch. 268 of 1860, re-enacted by sec. 30, ch. 119 of 1872) is merely that which the Courts would enforce as a sequence of the duty imposed, and in such cases contributory negligence defeats a recovery.

J. W. Lusk, for the respondent, contended that the Court below was right in refusing to hold, as matter of law, that plaintiff was guilty of negligence which would defeat his recovery.

...

RYAN, C. J. I. Ch. 248 of 1875 cannot be taken to repeal or modify secs. 30 and 31 of ch. 119 of 1872. . . . The sections of the general railroad act of 1872 require railroads to be fenced, and declare the liability of the companies for injury to domestic animals occasioned by failure to fence. When such fences are made and maintained, these sections declare that the companies shall be liable only for wilful or otherwise negligent injury. . . . This case is therefore to be determined under the provisions of the general railroad act.

II. Assuming the appellant's duty to have fenced its road at the locus in quo, the respondent's right to recover was put, upon the trial below, upon the question of his contributory negligence. And the first question to be determined here is, whether contributory negligence of a plaintiff enters into the defence, in an action against a railroad company for injury to domestic animals occasioned by total failure to fence the road.

(1) It has been generally understood by the profession, for years past,

that this Court held the liability of railroad companies in that case to be absolute. McCall v. Chamberlain, 13 Wis. 637, has, it is believed, been generally credited with the establishment of the rule. But a critical examination of the late Mr. Justice PAINE's opinion in that case does not appear to warrant that view. Doubtless there are things said in the case, arguendo, appearing to tend that way. But the question on which the opinion turns is, whether the mere fact that the animals were trespassers, would defeat the action. Of course all animals upon a railroad, except at legal crossings or by license, are trespassers. And the mere fact of trespass in such a case has rarely, if ever, been held to excuse injury occasioned by negligence of the railroad company, however the negligence may arise. Certainly not in this court. Stucke v. Railroad Co., 9 Wis. 202; C. & N. W. R'y Co. v. Gross, 17 id. 428. The trespass may come with or without negligence of the owner of the animal trespassing. The question of contributory negligence is therefore quite different from the question of trespass.1

(2) The rule is universal that, in actions for injury by negligence, contributory negligence sufficient in degree will defeat them. . . . The statute was not intended or framed to relieve adjoining owners from diligence in the care of their domestic animals, at risk of danger to railroad trains; or to license negligence to establish cattle markets on railroads. The essential dangers of railroads require diligence on both sides; a high degree of diligence in the management of the road, and at least ordinary diligence on the part of adjoining owners. The rule of absolute liability appears to be as unwise in policy as unsound in legal construction.

...

(3) The mere fact (if the fact sufficiently appear here) that the respondent's cow was permitted to pasture on land which he did not own, would not defeat his action. The true question was, whether the respondent was guilty of contributory negligence in suffering his cow to be at large upon unfenced land. The Court below submitted that as a question for the jury. The verdict is, that it was not. And the question for this Court is, whether the facts justified the Court below in treating the contributory negligence imputed to the respondent as a question of fact; or whether the respondent's act was so manifestly and conclusively negligent that the Court below should have withheld the question from the jury, and found the contributory negligence as matter of law. Langhoff v. Railway Co., 23 Wis. 43; Lawrence v. Railway Co., supra. . . .

The cow appears to have been left, presumably with other cattle, in summer, on grass-land, some three-quarters of a mile from the railroad; certainly at a comparatively safe distance, and with no apparent temptation to stray so far, or to leave its pasture for the uninviting barrenness of a railroad, without even garbage to prey upon. The

1 [The doctrine as to trespassers not recovering is dealt with post, Nos. 694706.- ED.]