111 U.S. 228
U.S.
1884
Mr. Justice Matthews

delivered the opinion of the court. He stated the facts in the foregoing language and continued:

The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that, if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question, therefore, for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury.

The particular negligence charged in the declaration and relied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it fiom Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14th, 1852, a breach of which resulting in his injury, confers on the plaintiff a right of action for damages.

It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, as is required by the maxim sic utere tuo ut non alienum laidas; that, consequently, in circumstances where the public safety requires such a precaution as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty. ' •

This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries' have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. “ These cases,” said the Supreme Court of Massachusetts in . Eaton v. Fitchburg Railroad Company, 129 Mass. 364, “ all rest on the common-law rule that when there are different public easements to be enjoyed by two parties at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary.” It was accordingly held in that case, that the jury might properly consider, whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations.

And the same principle has been applied in other cases than those of the actual coincidence, at crossings, of public highways. In Barnes v. Ward, 9 C. B. 392, it was decided, after much ..consideration, that,the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it- with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, and liable to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. Hardcastle v. South Yorkshire Ry. Co. 4 Hurl. & Nor. 67; Hounsell v. Smyth, 7 C. B. N. S. 731; Binks v. South Yorkshire Ry. Co., 3 B. & S. 244.

It has also been generally adopted in this country. Norwich v. Breed, 30 Conn. 535; Beck v. Carter, 68 N. Y. 283; Homan v. Stanley, 66 Penn. St. 464; B. & O. R. R. Co. v. Boteler, 38 Md. 568; Stratton v. Staples, 59 Me. 94; Young v. Harvey, 16 Ind. 314; Coggswell v. Inhabitants of Lexington, 4 Cush. 307; although Howland v. Vincent, 10 Mete. 371, is an exception.

The enforcement' of this rule in. regard to excavations made by proprietors of lots adjacent to streets and public grounds in cities and towns, in .the prosecution of building enterprises, and in the construction of permanent areas for cellar ways, is universally recognized as an obvious and salutary exercise of the common police powers of municipal government; and the omission to provide barriers and signals, prescribed by ordinance in such cases for the safety of individuals in the use of thoroughfares, is a failure of duty, charged with all the consequences of negligence, including that of liability for personal injuries of which it is the responsible cause. The true test is, as said by Hoar, J., in Alger v. City of Lowell, 3 Allen,'402, “ not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.”

As the ground of liability in these cases is that of a public nuisance, causing special injury, the rule, of course, does not apply where the structure complained of on the defendant’s property, and the mode of its use, are authorized by law; and, consequently, what has been said is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative authority implied in the ordinance, the breach of which is imputed to the defendant as negligence towards the plaintiff, and as serving to interpret the meaning and application of its provisions.

The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the railroad company, to which no one else is privy, and under which no third person can derive immediately any private right, prescribing conditions of the grant, to be enforced only by the city itself. Although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execution of it, it is also and primarily a municipal regulation, and as such, being duly authorized by the legislative power of the State, has the force of law within the limits of the city. Mason v. Shawneetown, 77 Ill. 533.

Neither can the ordinance, be limited by construction to the mere purpose of preventing animals from straying upon' or obstructing the railroad tracks; because, in addition to that, it expressly declares that the walls, fences, or other "works required shall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and property in course of transportation and already in care of the railroad company as common barrier, for the duty to carry and deliver them safely was already and otherwise provided for by law; nor, can it be supposed, from the nature of the case, that the stipulation was intended as security for any corporate interest of the city. The proviso in the 6th section, that the company shall construct such suitable gates at crossings as thereafter might be required by the common council to afford safe access to the lake, clearly designates the inhabitants of the city as at least within the scope of this foresight and care, the safety of whose persons and property was in contemplation.

The prevention of animals from straying upon the tracks, and the security of persons and property from danger, are two distinct objects, for both which the requirement ■ is made of suitable walls, fences, or other protections; and the ordinance, in these two particulars, is to be referred to distinct legislative grants of power to the municipal body. The general act to provide for the incorporation of cities and villages, which constitutes the charter of the city of Chicago, confers upon its city council power: “ Twenty-sixth. To require railroad companies to fence their respective railroads, or any portion of the same, and to construct cattle guards, crossings of streets, and public roads, and keep the same in repair within the limits of the corporation. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all damages the owner of any cattle or horses or other domestic animal may sustain, by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the general laws of this State, relative to the fencing of railroads.” Cothran’s Rev. Stat. 111. 1884, 227. By the general law of the State, requiring railroads to be fenced, except within the limits of municipal corporations, the company omitting performance of the duty is liable to the owner for all damages to animals, irrespective of the question of negligence. Cothran’s Rev. Stat. 111. 1884, 1151.

Whether this provision is limited to the protection of animals, and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized thereby might be considered as evidence of negligence, in case of injury tc person or property, in any other case, it is'not necessary for us now to decide; • for in the same section of the statute there is this additional power conferred upon the city council:

“ Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads,” &c.

The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirements as in its discretion it 'may prescribe, and as are within the just limits of police regulation, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads. And as we have shown by reference to analogous cases, the erection of a farrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake Park is shown to be, in the present case, is a reasonable provision, clearly within the, limits of such authority. To leave the space between the park and the breakwater, traversed by the numerous tracks of the railroad company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women and children frequenting the. park to push across the tracks at all points to the breakwater, for rec.reation and amusement, at the risk of being fun down by constantly passing trains. A fence upon the line between them might have served, at'least, as notice and signal of danger, if not as an obstacle and .prevention. For young children, for whose health and recreation the park is presumably in part intended,' and as irresponsible in many cases as the dumb cattle, for whom a fence is admitted to be some, protection, such an impediment to straying might prove of value and importance. The object to be attained-^-the security of the persons of the people of the city — was, we think, clearly within the design of the statute and the ordinance; and the means required by the latter to be adopted by the railroad company was appropriate and legitimate. Mayor, &c., of New York v. Williams, 15 N. Y. 502.

It is said, however, that it does not follow that whenever a statutory duty is created, any person who can -show that he has sustained injuries from the non-performance of that duty can maintain an action for damages against the person on whom the duty' is imposed; and we are referred to the case of Atkinson v. Newcastle Water Works Co., L. R. 2 Exch. Div. 441, as authority for that proposition, qualifjdng as it does the broad doctrine stated by Lord Campbell in Couch v. Steel, 3 E. & B. 402. But accepting the more limited doctrine admitted in the language of Lord Cairns in the case cited, that whether such an action- can be maintained must depend on the “ purview of the legislature in the particular statute, and the language which they have there employed,” we think the right to sue, under the circumstances of the present case, clearly within its limits. In the analogous case of fences required by the statute as a protection for animals, an action is given to the owners for the loss caused' by the breach of the duty. A. ud although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive óf the liability, irrespective of negligence, yet an action Avill lie for the personal injury, and this breach of duty Avill be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. “The nature of the duty,” said Judge Cooley in Taylor v. L. S. & M. S. R. Company, 45 Mich. 74, “ and the1 benefits to be accomplished through its performance, must generally determine AArhether it is a duty to the public in part or exclusively, or Avhether individuals may claim that it is a duty imposed Avholly or in part for their especial benefit.” See, also, Railroad Company v. Terhune, 50 Ill. 151; Schmidt v. The Milwaukee & St. Paul Railway Company, 23 Wisc. 186; Siemers v. Eisen, 54 Cal. 418; Galena & Chicago Union Railroad Company v. Loomis, 13 Ill. 548 ; O. & M. Railroad Company v. McClelland, 25 Ill. 140; St. L. V. & T. H. Railroad Company v. Dunn, 78 Ill. 197 ; Massoth v. Delaware & Hudson Canal Company, 64 N. Y. 521; B. & O. Railroad Company v. State, 29 Md. 252; Pollock v. Eastern Railroad Company, 124 Mass. 158 ; Cooley on Torts, 657.

It is said, hoAvever, that, in the present case, the failure or omission to construct a fence or Avail cannot be alleged as negligence against the company, because, as the structure Avas to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common council .might direct, no duty could arise until after the council had directed the character of the work to be constructed, of Avhich no proof Avas offered. But the obligation of the company Avas not conditioned on any previous directions to be given by the city council. It Avas absolute, to build a suitable Avail, fence, or other sufficient Avórk as Avould prevent animals from straying up.on the tracks and secure persons and property from danger. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if necessary ; but it was matter'of discretion, and they were not required to act in the first instance, nor at all, 'if they were satisfied with the work as executed by the railroad company. Tallman v. Syracuse, Binghamton & N. Y. Railroad Company, 4 Keyes, 128; Brooklyn v. Brooklyn City Railroad Company, 47 N. Y. 475.

It is further argued that the direction of the court below Avas right, because the Avant of a. fence could not reasonably be alleged as the cause of the injury. In the sense of ah efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in Avhich the law uses the term in this connection. The question is, Avas it causa sine qua non, a cause Avhich if it had not existed, the injury Avould not haATe taken place, an occasional cause % and that is a question of fact, unless the causal connection is evidently not proximate. Milwaukee & St. Paul Railroad Company v. Kellogg, 94 U. S. 469. The rule laid down by Willes J., in Daniel v. Metropolitan Railway Company, L. R. 3 C. P. 216, 222, and approved by the Exchequer Chamber, L. R. 3 C. P. 591. and by the House of Lords, L. R. 5 H. L. 45, was this: “It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the Avant of some precaution Avhich the defendants might and ought to have resorted to; ” and in the case of Williams v. Great Western Railway Company, L. R. 9 Excheq. 157, Avliere that rule AAras applied to a case similar to the present, it Avas said (p. 162): “ There are many supposable circumstances under Avhich the accident may have happened, and which Avould connect the accident with the neglect. If the child was merely Avandering about and he had met with a stile, he would probably haA-e been turned back; and one at least of the objects for which a gate or stile is required, is to Avarn people of Avhat is before them and to make them pause before reaching a dangerous place like a railroad.”

The evidence of the circumstances shoAving negngence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Company v. Stout, 17 Wall. 657, and Randall v. B. & O. Railroad Company, 109 U. S. 478, should have been submitted to the jury; and for the error of the Circuit Court in directing a verdict for the' defendant,

The judgment is reversed and a new trial a/wa/rded.