§ 230 a. Deceit. Where the damage for which the action is brought has resulted from the misrepresentation of a fact by the Siemers v. Eisen, 54 Cal. 418; Willy v. Mulledy, 6 Abb. (N. Y.) N. Cas. 97; Devlin v. Gallagher, 6 Daly (N. Y.), 494. As to what is evidence of negligence in carriers, see ante, §§ 218, 219, 222, notes. Proof of the negligence of the defendant's servants, while acting within the scope of their employment and for the benefit of the master, is sufficient proof of the negligence of the defendant, though he is not liable for their acts which in no way relate to the service, although such acts may have been done during the service (Bryant v. Rich, 106 Mass. 180; Palmer v. Railroad, 3 S. C. 580; Jackson v. Sec. Av. R. R. Co., 47 N. Y. 274; Hanson v. E. & N. A. R. R. Co., 62 Me. 84 ; Garretzen v. Duenkel, 50 Mo. 104), unless the act is wanton and wilful, and in no sense incidental to the discharge of the servant's duty. Isaacs v. Third Av. R. R. Co., 47 N. Y. 122. See also ante, § 68. A passenger injured by a quarrel between others on the cars may recover damages of the carrier. It is his duty to see that passengers are not injured by disorderly conduct on his cars. Pitts. & Con. R. R. Co. v. Pillow, Pa., Jan. 1875, 7 Leg. Gaz. 13. As to the measure of damages see post, § 253. It must also be shown that the negligence is the proximate cause of the injury complained of. Barringer v. New York, &c. R. R. Co., 18 Hun (N. Y.), 398; Pennsylvania, &c. R. R. Co. v. Lacey, 89 Pa. St. 458; Pennsylvania, &c. v. Hensil, 70 Ind. 569; Kennedy v. New York, 73 N. Y. 365. But the interposition of a natural force, such as the law of gravitation, a running stream, wind, &c., by which the results of the defendant's careless act are communicated to the plaintiff or his property, does not render such act any the less the proximate cause, as where burning oil is carried on running water, from place to place. Kuhn v. Jewett, 32 N. J. Eq. 647. Cf. Wooley v. Grand Street, &c. Ry. Co., 83 N. Y. 121. The third point to be proved is that the injury complained of was not caused by the plaintiff's own negligence, either solely, or in connection with the negligence of the defendant. For a general discussion of this point and the question of comparative negligence, see post, § 232 a, note (a). As to the interposition of the negligence of third parties, concurrently with the negligence of the defendant, and acting with it to produce the injury, the rule seems to be that if the defendant, by using such diligence as he was bound to use, could have averted the mishap, then the intervention of the negligence of third parties will not be a defence to him. Slater v. Mersereau, 64 N. Y. 138; Shearman & Redfield, Negligence, § 10. Cf. Ring v. Cohoes, 77 N. Y. 83. It has been a vexed question, whether the court or jury should decide what is negligence in each case. If, on undisputed facts, or on the plaintiff's own showing in putting in his case, the irresistible conclusion is that no evidence of negligence has been put in, the court may withdraw the case from the jury, and so if negligence appears irresistibly proven, so that no reasonable jury could find against it. Chicago, &c. R. R. Co. v. Scates, 90 Ill. 586; Buckley v. New York, &c. R. R. Co., 43 N. Y. Super. Ct. 187; Delaware, &c. R. R. Co. v. Toffey, 38 N. J. L. 525; Hoyt v. City of Hudson, 41 Wisc. 105; Palinsky v. New York, &c. R. R. Co., 82 N. Y. 424; International, &c. R. R. Co. v. Halloran, 53 Tex. 46; Zimmerman v. Hannibal, &c. R. R. Co., 71 Mo. 476; Brennan v. Fair Haven, &c. R. R. Co., 45 Conn. 284. But where, though the facts are undisputed, they are such as might or might not justify an inference of negligence, it has been said that the court should decide whether there is negligence (Fletcher v. Atlantic, &c. R. R. Co., 64 Mo. 484); and also that it is for the jury (Mississippi, &c. R. R. Co. v. Mason, 51 Miss. 234; Central Branch, &c. R. R. Co. v. Hotham, 22 Kan. 41). It is certain that the courts have very much restricted the limits of the facts which are conclusive evidence of negligence. Memphis, &c. R. R. Co. v. Lyon, 62 Ala. 71; Cottrell v. Chicago, &c. R. R. Co., 47 Wise. 634; Fairbury v. Rogers, 2 Ill. App. 96; Cincinnati, &c. R. R. Co. v. Ducharme, 4 Ill. App. 178; Sheehy v. Burger, 62 N. Y. 558. But in cases where the existence of the facts which are relied on to show negli gence is disputed, or where, as is stated above, though the existence of such facts is clear, yet they are not of so clearly negligent a nature that a jury would be bound to find negligence, the majority of the decisions holds that the jury should have all the facts in the case which have a tendency to prove negligence, submitted to them with proper instructions by the judge, and should decide whether or not the plaintiff or defendant was negligent. Linnehan v. Sampson, 126 Mass. 506; Williams v. Atchison, &c. R. R. Co., 22 Kan. 117; Cassidy v. Angell, 12 R. I. defendant, it is necessary to prove not only that the statement was false in fact, but that it was made fraudulently, or without probable cause; for if it was not known to be false by the party making it, but, on the contrary, was made honestly, and in full belief that it was true, he is not liable at law. Thus, where the allegation was, that the defendant falsely represented to the sheriff, that one J. W., then in custody, was the same J. W. against whom the sheriff (plaintiff) had another process; it was held a good defence, that the defendant believed, upon good and probable grounds, that the representation was true.1 (a) So, if an agent assume to act as such after the death of his principal, but in justifiable ignorance of that fact, he is not liable for such misrepresentation of his agency.2 § 230 6. Injuries to land. an injury to land, it is sufficient for the plaintiff to allege and prove his possession of the property, in order to entitle him to the action against a stranger. If the possession was in fact vacant, proof of his title alone will be constructive proof of his possession. The nature and value of his interest will become material, only as they affect the amount of the damages; and for this purpose an equitable title may be shown, and will be sufficient to entitle him to full damages. (b) Whenever this action is brought for 1 Collins v. Evans, 8 Jur. 345; 5 Ad. & El. N. s. 804, 820. If the party who made the representation knew it at the time to be untrue, this is sufficient evidence to sustain the allegation of fraud and deceit, though he did not intend actually to defraud or injure the other. Watson v. Poulson, 15 Jur. 1111. And see Polhill v. Walter, 3 B. & Ad. 113. But in the sale of real estate, if the vendor make representations respecting the land which are materially erroneous, going to the basis of the contract, equity will rescind the purchase, though the vendor had no intention to deceive. Taylor v. Fleet, 1 Barbour, 471. And see Doggett v. Everson, 3 Story, 733; 1 Story, Eq. Jur. § 193. As to goods, see Johnson v. Peck, 1 Woodb. & Minot, 334. 2 Smout v. Ilbery, 10 M. & W. 1. And see Story on Agency, § 265 a; Pasley v. Freeman, 3 T. R. 57; Haycraft v. Creasy, 2 East, 92; Wilson v. Fuller, 3 G. & D. 570. 3 Gardner v. Heartt, 1 Comst. 528; 2 Barb. S. C. 165; Schenck v. Cuttrell, 1 N. J. 5. 447; Watkins v. Atlantic Ave. R. R. Co., 20 Hun (N. Y.), 237; Philadelphia, &c. R. R. Co. v. Killips, 88 Pa. St. 405; Ditberner v. Chicago, &c. R. R. Co., 47 Wisc. 138; Shafter v. Evans, 53 Cal. 32; Towne v. Nashua, &c. R. R. Co., 124 Mass. 101; Cook v. Union, &c. R. R. Co., 125 Mass. 57; Taber v. Delware, &c. R. R. Co., 71 N. Y. 489; Houston, &c. R. R. Co. v. Randall, 50 Tex. 254; Swoboda v. Ward, 40 Mich. 420; Grand Rapids, &c. R. R. Co. v. Martin, 41 Mich. 667; Erd v. St. Paul, 22 Minn. 443; Woodfolk v. Macon, &c. R. R. Co., 56 Ga. 457; Hunt v. Salem, 121 Mass. 294; Gilman v. Noyes, 57 N. H. 627). (a) A false statement of value is not actionable. Ellis v. Andrews, 56 N. Y. 83. But see Simar v. Canaday, 53 N. Y. 306, that it is, if it is an affirmation of a fact rather than expression of an opinion. (b) The diversion, by digging a well on one's own premises, of an unknown subterranean current of water from the well of an adjoining proprietor gives to the lat ter no cause of action against the former. Chase v. Silverstone, 62 Me. 175; Chase § 231. Defence. General issue. Under the general issue, the defendant is ordinarily permitted to give evidence of any matters ex post facto, which show that the cause of action has been discharged, or that in equity and conscience the plaintiff ought not to recover. Thus, a release, a former recovery, or a satisfaction, may be given in evidence.2 So, also, in an action for enticing away a servant, the defendant may, under this issue, give evidence that the plaintiff has already recovered judgment for damages against the servant, for departing from his service, and that since the commencement of the present action, this judgment had been satisfied. So, in an action on the case for beating the plaintiff's horse, the defendant may show that it was done to drive the horse from his own door, which he obstructed. And in an action for obstructing ancient lights, by the erection of a house, a customary right so to do may be given in evidence. So, in an action for hindering the plaintiff in the exercise of his trade, it may be shown, under this issue, that the trade was unlawful; and in an action. for destroying a rookery, it may be shown that it was a nuisance.7 And, in general, wherever an act is charged in this form of action to have been fraudulently done, the plea of not guilty puts in issue both the doing of the act, and the motive with which it was done.8 § 232. Special pleas. But to this rule there are some exceptions; such as the statute of limitations; justification, in slander, by alleging the truth of the words; retaking on fresh pursuit of a prisoner escaped; which cannot be given in evidence, unless specially pleaded.9 § 232 a. Negligence on part of plaintiff. The defendant may also 1 Bird v. Randall, 3 Burr. 1353, per Ld. Mansfield. 2 Ibid.; Yelv. 174 a, n. (1), by Metcalf; Stephen on Plead. 182, 183 (Am. ed. 1824); Stafford v. Clark, 2 Bing. 377; Anon., 1 Com. 273. Bird v. Randall, 3 Burr. 1345. 4 Slater v. Swann, 2 Stra. 872. 6 Anon., 1 Com. 273. 6 Tarleton v. McGawley, Peake's Cas. 207, per Ld. Kenyon. 7 Hannam v. Mockett, 2 B. & C. 934. But if it be a public nuisance, not specially injurious to the party, he has no right to abate it. Dimes v. Petley, 15 Ad. & El. N. s. 276. 8 Mummery v. Paul, 8 Jur. 986. So, in an action on the case for wrongfully keeping a ferocious dog, knowing him to be of such a disposition, the plea of not guilty is held to put in issue the scienter. Card v. Case, 12 Jur. 247. 91 Chitty on Pl. pp. 433, 434. more v. Richards, 7 H. L. Cas. 349; Hanson v. M'Cue, 42 Cal. 303. But see Sweet v. Cutts, 50 N. H. 439, and note to s. c. 11 Am. L. Reg. N. s. 14; Bussell v. Salisbury Manuf. Co., 43 N. H. 569. prove, in defence, that the injury might have been avoided by the use of due care on the part of the plaintiff; for the question is, not only whether the defendant did an improper act, but whether the injury to the plaintiff may legally be deemed the consequence of it. But it will not be sufficient, as a complete defence to the action, to show merely that the plaintiff is chargeable with want of due care, unless the injury was entirely caused by such omission; for if it only contributed to it in part, the plaintiff may recover; and his own misconduct in that case, if available to the defendant, will go in reduction of damages.1 (a) And if the plaintiff was at the 1 Butterfield v. Forrester, 11 East, 60; Marriott v. Stanley, 1 M. & G. 568; Bridge v. Grand Junction Railw. Co., 3 M. & W. 244; Clayards v. Dethick, 12 Ad. & El. N. 8. 439; Perkins v. Eastern R. R. Co., 30 Me. 307; Greenland v. Chaplin, 19 Law J. Exch. 273. See Moore v. Abbot, 32 Me. 46. (a) One who is injured by the mere negligence of another cannot recover at law or in equity any compensation for his injury if he, by his own or his agent's ordinary negligence or wilful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence to use a proper degree of care to avoid the consequences of such negligence. Shearman & Redfield on Negligence, $ 25. St. Louis, &c. R. R. Co. v. Mathias, 50 Ind. 65; Richmond, &c. R. R. Co. v. Morris, 31 Gratt. (Va.) 200; South, &c. R. R. Co. v. Thompson, 62 Ala. 494; Lake Shore, &c. R. R. Co. v. Clemens, 5 Ill. App. 77. But if the plaintiff's negligence, though accompanying the injury, is not the cause of it, and the defendant's negligence does cause it, the plaintiff can recover. Gould v. McKenna, 86 Pa. St. 297; Frick v. St. Louis, &c. R.R. Co., 5 Mo. App. 435. Where a party injured so that death must follow if relief is not had employs a competent physician, the fact that a mistake may have been made in the treatment which contributed to the death does not release the defendants from liability. Santer v. N. Y. C. R. R. Co., N. Y. Ct. of App., 14 Alb. L. J. 38; Collins v. Council Bluffs, 32 Iowa, 324. The neglect of a patient to follow the directions of his surgeon is prima facie evidence of contributory negligence, and, unless rebutted, releases the latter from liability from injuries alleged to be due to his negligence. Geiselman v. Scott, 25 Ohio St. 86; Hubbard v. Thompson, 109 Mass. 286; McCandless v. McWha, 22 Penn. St. 272. The care which the plaintiff is obliged to use is that which is reasonable, according to his situation; he is not held to the utmost possible exertion of care. Chicago, &c. R. R. Co. v. Donahue, 75 Ill. 106; Thurber v. Harlem Bridge, &c. Ry. Co., 60 N. Y. 326. Whether, if one be engaged in an unlawful act, travelling on Sunday for instance, for pleasure or on business, in violation of the statute, — he may maintain an action for an injury by negligence, the authorities differ." That he cannot, see Jones v. Andover, 10 Allen (Mass.), 18; Cratty v. Bangor, 57 Me. 423; Johnson v. Irasburg, 47 Vt. 28; Smith v. B. & M. R. R. Co., 120 Mass. 490; McGrath v. Merain, 112 Mass. 467. That he can, see Sutton v. Wauwatosa, 29 Wis. 21; Carroll v. Staten Is. R. R. Co., 58 N. Y. 126; Phila., &c. R. R. Co. v. Phila., &c. Towboat Co., 23 How. (U. S.) 209. also ante, § 199. In Baker v. Portland, 58 Me. 199, the rule is said to be that the plaintiff in such cases may recover unless the unlawful act contributed to produce the injury. Cf. Steele v. Burkhardt, 104 Mass. 59. In some states, the rule that the plaintiff cannot recover if his own negligence contributes to cause the injury, has been modified by introducing a comparison between the negligence of the parties, and if, by such comparison, it appears that the negligence of the plaintiff was slight and that of the defendant was gross, then the plaintiff is still entitled to recover. Chicago, &c. R. R. Co. v. Harwood, 90 Ill. 425; Toledo, &c. R. R. Co. v. O'Connor, 77 Ill. 391. In such cases it is incumbent on the plaintiff to show this comparison, and to prove that his See time a passenger in the vehicle of another, he becomes so far identified with the owner and his servants as that their want of due care may be shown in defence of the action.1 § 232 b. Co-servants. Where the injury complained of was occasioned by the negligence of a person in the defendant's employment, it has often been found extremely difficult to determine whether the relation of master and servant existed, so as to charge the defendant or not. But by comparing the adjudged cases, the principle to be deduced from them seems to be this, that where the person employed is in the exercise of a distinct and independent employment, the owner parting, for the time, with all control over that which is the subject of the bailment or contract, and having no control over the conduct of the person employed, or his servants, such person stands in the relation of a sub-contractor 1 Thorogood v. Bryan, 8 M. G. & S. 115; Cattlin v. Hills, Id. 123. negligence is slight compared with that of the defendant. Chicago, &c. R. R. Co. v. Harwood, ut sup. ; Rockford, &c. R. R. Co. v. Delaney, 82 Ill. 198; Schmidt v. Chicago, &c. R. R. Co., 83 Ill. 405; Hughes v. Muscatine County, 44 Iowa, 672; Quinn v. Donovan, 85 III. 194. This rule of comparative negligence is not by any means universally admitted in the United States, and has not been allowed in the recent cases of Marble v. Ross, 124 Mass. 44; Pennsylvania Ry. Co. v. Righter, 42 N. J. L. 180; Potter v. Warner, 91 Pa. St. 362. In Massachusetts, by statute, contributory negligence, unless gross, is not a defence to an action against a railroad company for negligence at a crossing. Pub. Stat. c. 112, § 213. This statute is based on the policy of keeping the railroad companies vigilant at such places, and is a departure from the common-law rule on this subject. As to the burden of proof, the generally received rule seems to be that the burden of showing contributory negligence of the plaintiff is on the defendant. Indianapolis, &c. R. R. Co. v Horst, 93 U. S. 291; Sanders v. Reister, 1 Dak. Terr. 151; Hoyt v. City of Hudson, 41 Wis. 105; Snyder v. Pittsburgh, &c. R. R. Co., 11 W. Va. 14; Holt v. Whatley, 51 Ala. 569; Texas, &c. R.R. Co. v. Murphy, 46 Tex. 356; Hocum v. Weitherick, 22 Minn. 152; but the better rule is that the burden of showing due care is on the plaintiff. Lane v. Crombie, 12 Pick. (Mass.) 177; Murphy v. Deane, 101 Mass. 455; Shearman & Redfield, Neg ligence, § 112; Louisville, &c. R.R. Co. v. Boland, 53 Ind. 398; Benton v. Central R.R. Co., 42 Iowa, 192; Chicago City Ry. Co., v. Freeman, 6 Ill. App. 608. Perhaps the apparent conflict of the decisions may be explained by the fact that in cases where it is held that the defendant must show contributory negligence, the plaintiff, in putting in his case, has shown facts which make out a prima facie case of due care; and when the courts say the burden of proof of contributory negligence is on the defendant, they mean that it is incumbent on the defendant to meet this prima facie case of due care. In addition to the remedies which the injured party has against those by whose negligence he is injured, there is also, in most States, a statutory remedy given, if the injured person dies, to his next of kin or personal representatives. In some States this remedy is given only when the injury is caused by the negligence of a railroad or steamboat company, or some common carrier. In others, it is good against any one. The negligence must be proved just as if the action were brought by the injured party, and contributory negligence by the nominal plaintiff will not defeat the action. Shearman & Redfield, Negligence, §§ 290-302. This remedy is purely statutory and does not exist at common law. Sullivan v. Union Pacific R.R. Co., 1 McCrary, Cir. Ct. 301. Cf. Edgar v. Castello, 14 S. C. 20; Armstrong v. Beadle, 5 Sawyer, Cir. Ct. 484. |