63 F. 942 | 7th Cir. | 1894
After making tlie foregoing statement of facts, the opinion of the court was delivered by
The plaintiff in error contends that no contract relation existed between it and the defendant in error, and that the injury complained of did not arise out of, or occur in consequence of, any privity of contract between it and the defendant in
“It seems to me that the very case from Avhicli the learned counsel seeks to distinguish this is the case now before us. The proprietors of the soil held out an allurement, whereby the plaintiff was induced to come upon the place in question. They held out this road, to all persons having occasion to iwoceed to the asylum, as the means of access thereto. * * * Having, so to speak, dedicated the way to such of the general public as might have. occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent for them to place thereon any obstruction calculated -to render the road unsafe, and likely to cause injury to those persons to whom they held it out as a way along which they might safely go. If that be so, a third person could not acquire the right to do so UDder their license or permission.”
In the same case, Williams, J., said:
“I see no reason why the plaintiff should not have a remedy against such a wrongdoer, just as much as if the obstruction had taken place upon a public road. Good sense and justice require that he should have a remedy, and there is no authority against it.”
The defendant in error, as the employé of the telegraph' company, had tbe right to use the hall, for the purpose of travel to and from his place of employment, free from dangerous obstructions, as against the owner of the building or his licensee, as well as against one obstructing it without any claim of right. The plaintiff in error, in obstructing the hall, was guilty of an invasion of the right of the defendant in error to its free and unobstructed use. The case of
It is the settled doctrine of the federal courts that the burden of showing contributory negligence rests upon the defendant. Unless, from the evidence in the case, contributory negligence is affirmatively disclosed, the plaintiff is entitled to recover, upon proof of actionable negligence on the part of the defendant resulting in injury. Contributory negligence is claimed to have been affirmatively shown in the testimony of the defendant in error. It has been well said:
“There is no fixed standard in the l;uv by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under all the circumstances. The terms ‘ordinary caro,’ ‘reasonable prudence,’ and such like terms as are applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may he deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions of the court. It is their province to note the special circumstances and surroundings of each particular case, and then to say whether the conduct of the parties in that case was such as would he expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, The determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.” Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679.
An adult must use that degree of care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. In infants and children of immature judgment, less discretion is required, depending upon age and intelligence in each
The plaintiff in error further contended on the oral argument that the injury sustained by the defendant in error was not the proximate result of his fall, but arose from the presence of tuberculous germs in his system. It was the hurt occasioned by the fall which afforded an opportunity for the active development of the poisonous germs which had theretofore been innocuous. It was the wrongful act which gave rise to the consequent injury, and it is not apparent that the injury would have occurred in the absence of such cause. In the case of Railway Co. v. Kellogg, 94 U. S. 469, 475, it is said:
“When there is no intermediate, efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.”
The wrongful act of the plaintiff in error subjected the injured party to other and dependent causes, which were set in motion by the original hurt. For this it is answerable. Ginna v. Railroad Co., 67 N. Y. 596; Drake v. Kiely, 93 Pa. St. 492; Brown v. Railway Co., 54 Wis. 342, N. W. 356, 911; Railway Co. v. Buck, 96 Ind. 346.
(.1) “Wo think the decided weight of authority is in favor of the rule that, in an action of negligence, the defendant has the right to have the question submitted to the jury whether the result whicli is ¡he ground of action might, under all (lie circumstances, have been reasonably expected, not by the defendant, but by a man of ordinary intelligence and prudence.” (2) “It is generally held that, in order to warrant a finding that negligence of an act not amounting to wanton wrong is the proximate cause of ihe injury, it. must airpea.r that the injury was the natural and probable consequence of negligence or wrongful act. and that it ought to have heen foreseen, in the light of the attending circumstances.”
It is not necessary to express any opinion in regard to the accuracy of the above propositions of law, or in regard to their applicability to the facts of the cast*. The plaintiff in error failed to reserve any exception io the refusal of the court to give them in charge to the jury. It will not now be heard to allege error upon any ruling to which it did not, at the proper time, reserve an exception.
The instructions of the court were in harmony with the foregoing principles, a,nd a careful examination of them fails to disclose any substantial error. All of the alleged errors argued by counsel have been considered by the court, and we find no prejudicial error in the record. The judgment below is affirmed, at the costs of the plaintiff in error.