84 F. 935 | 7th Cir. | 1898
after stating the facts as above, delivered the opinion of the court.
We dismiss without remark the consideration of the second and third counts of the declaration, because there is entire absence of evidence to sustain the allegation of the second that he was upon the highway at the time of this injury, or of the third that the servants of the company represented to him that there was no danger, or that the tanks contained cotton-seed and Hack oil, and would not explode. The first and fifth counts will be considered together, and the fourth count by itself.
We ruled in Goodlander Mill Co. v. Standard Oil Co., 24 U. S. App. 7—12, 11 C. C. A. 255, and 63 Fed. 401, that “it is not every one who suffers loss from another’s negligence who may recover therefor. Negligence, to be actionable, must occur in breach of a legal duty arising out of contract or otherwi.se, owing to the person sustaining the loss. Kahl v. Love, 37 N. J. Law, 5; Bank v. Ward, 100 U. S. 195. Mr. Wharton defines ‘legal duty’ to be ‘that which the law requires to be done or forborne to a determinate person, or to the public at large, and as correlative to a right vested in such determinate person or the public at large.’ Wliart. Nog. (2d Ed.) § 24.” We are to deal with legal, and not moral, obligations. We have therefore to inquire, first, whether, upon the assumption that there was no contractual relation between Ballentine and the1 Railway Company, there was in the distressing occurrences of this conflagration violation of any legal duty owing by the former to the latter, operative to his injury as a proximate and natural cause of that injury. The collision and the resulting fire were caused by the‘misplacing of a switch, presumably the negligent act or omission of a servant of the Railway Company. That negligent act or omission, however, was not in breach of any duty owing to Ballentine, and as to him was innocuous, he being two miles away at the time and unaffected thereby. He came upon the scene afterwards, and while the conflagration was in progress. Tie went upon the grounds of the Railway Company where he had no right to be, and going there, at best, as a mere licensee, he was bound to take things as he found them, and he assumed the risk of the situation. Elevator Co. v. Lippert. 24 U. S. App. 182, 11 C. C. A. 521, and 63 Fed. 942. So it is held that firemen entering upon premises to extinguish a conflagration and to save property do so, not by permission or invita
It is urged that under the fourth count this judgment can be upheld because Ballentine was employed to assist in the removal of the stock pens, and he, being ignorant of the qualities of petroleum, was not previously warned of the danger, but that the Bailway Company assured him that the contents of the tanks were nonexplosive. It might suffice to say that we are of opinion that there is no evidence to sustain the finding that he was employed by the Bailwav Company. In the excitement of a great fire, at the suggestion of one who had no connection with the Bailway Company, Ballentine