pany to which no one else is privy, and under which no third person can derive immediately any private right, prescribing conditions of 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. . . . It is said, however [by the defendant], 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 Ex. D. 441, [ante, No. 413,] as authority for that proposition, qualifying 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 the 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 duty. And 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 the animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will 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. Co., 45 Mich. 74, "and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their special benefit. . . ." The evidence of the circumstances showing negligence 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 awarded. NOTE: Menut v. Boston & M. R. Co. (1910, 207 Mass. 12, 92 N. E.1032). (Plaintiff alleged that, while at work on premises adjoining defendant's railway, he was thrown from a pile of lumber and over a wall onto the right of way of defendant. Plaintiff contended that, had defendant fenced its right of way at that point, the fence would have prevented his fall and injury.) Braley, J. It is not sufficient for the plaintiff to prove that the defendant failed to fence, and if this had been done he would not have been injured, but he must go further and show that the requirement of the statute was enacted for his benefit. . . . The "security and benefit" of the landowner, and "of travellers upon such railroad," having been the words of the statute of 1841, there would seem to be no reasonable ground to question that, under the original act and subsequent statutes which indicate no change of purpose, a fence sufficient to turn the cattle of those whose lands adjoined the road was all that the Legislature intended. . . . The plaintiff, however, urges that the demurrer should be overruled and the judgment reversed, because in a few jurisdictions statutes primarily enacted for purposes similar to our own, even if in some instances varying in terms, have been judicially defined as including protection from personal injuries which might be caused to children of tender years who wandered upon the track through the neglect of the corporation to fence. Hayes v. Mich. C. R. Co., 111 U. S. 228 [No. 530 above.] But even in this distinction the decisions are not harmonious. . . . A child 6 years old went upon the unfenced track of the defendant, in Bischof v. Illinois Southern R. R., 232 Ill. 446, 83 N. E. 948, 13 Ann. Cas. 185, and was killed, but after a review by Cartwright, J., of many of the cases upon which the plaintiff at bar relies, the Court held that, under a statute requiring the corporation to erect and maintain a fence sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on the railroad, the company was not responsible for the death of the plaintiff. It also has been decided in other jurisdictions that statutes requiring the corporation to fence against live stock should not be construed as requiring it to fence for the protection of persons whether infants or adults. And where fencing is held as designed for the benefit of the general public, it would seem there is no obligation to provide for the safety of those capable of taking care of themselves, and of realizing the peril of being on a railroad track. 531. RENNER v. CANFIELD SUPREME COURT OF MINNESOTA. 1886 36 Minn. 90, 30 N. W. 435 APPEAL by defendant from an order of the District Court for Douglas county, COLLINS, J., presiding, refusing a new trial after a verdict for plaintiff for $200. MITCHELL, J. As the defendant and one Ward were driving along the highway in front of plaintiff's premises, a dog belonging to plaintiff's father (and which happened to be at that time on plaintiff's premises) rushed out upon the highway, and attacked Ward's dog. Defendant jumped out of his wagon with his gun, whereupon the dog of Renner, Sr., retreated towards or upon plaintiff's premises. While it was thus retreating, defendant fired at and killed it. This dog was accustomed to attack and worry the dogs of passing travellers on the highway, but there is no evidence that it ever attacked persons. When defendant shot the dog, he stood in the highway, about 175 feet from the plaintiff's house, which was situated on elevated ground some distance back from the road. The dog, when shot, was some 150 feet from the house. Plaintiff's wife was standing at the pump, at or near the side of the house, and saw the defendant shoot, but defendant did not see her, and was not aware of her presence; the view from the highway to the house being more or less intercepted by intervening trees. Mrs. Renner, being owing to her pregnancy in a delicate state of health, and her nerves very sensitive, was so startled and frightened as to seriously affect her health. Her fright seems to have been largely caused, or at least greatly aggravated, by the mistaken impression that defendant aimed his gun towards her, when in fact it was aimed at right angles to the direction where she was standing. For the damages resulting from this injury to his wife's health plaintiff brings this action. It is very difficult to determine, either from the complaint, or the evidence introduced, or from the charge of the Court, the exact theory upon which this action was brought, tried, or submitted to the jury, whether the gravamen of defendant's alleged tort was the killing of the dog, or negligence in firing off the gun in dangerous proximity to a human residence. The Court did, however, expressly instruct the jury that the shooting of this dog by defendant was unlawful. He also instructed them that a person is liable for all the consequences "which flow naturally and directly from his acts," and then left it to them to decide, as a question of fact, whether the injuries to plaintiff's wife were the "natural result of defendant's acts." From this the jury could and naturally would understand that defendant might be liable in this action from the mere fact that the killing of the dog was unlawful. We think a verdict for plaintiff could not be sustained on any such theory of the case. It is elementary that a man is liable only for the proximate or immediate and direct results of his acts. In strict logic it may be said that he who is the cause of loss should be responsible for all the losses whether proximate or remote, which flow from his acts. But in the practical workings of society any such rule would be both impracticable and unjust, and therefore the law looks only to direct and proximate results, or, as the rule is sometimes stated, "whoever does a wrongful act is answerable for the consequences that may ensue in the ordinary and natural course of events." There can be no fixed rule upon the subject that can be applied to all cases. Much must depend upon the circumstances of each particular case. But in this case it is very clear to us that the killing of this dog was in no sense the proximate cause of the injury to the plaintiff's wife. The act, in itself, was not a tort of any kind against plaintiff, as the dog was not his property. The injury to the woman would have been presumably the same whether the killing of the dog was lawful or unlawful, and whether the defend ant had fired at the dog, or at a bird in the air. If the acts of defendant amounted to any tort which, in any possible view of the case, could be held to be the proximate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means prepared to say that, upon the evidence, a verdict for plaintiff could be sustained even upon that ground. But it is enough here to say that the case was not submitted to the jury on any such theory. Order reversed, and new trial ordered. 532. STONE v. BOSTON & ALBANY RAILROAD [Printed ante, as No. 461; Point 3 of the opinion.] 533. OSBORN v. VAN DYKE SUPREME COURT OF IOWA. 1901 113 Ia. 557, 85 N. W. 784 APPEAL from District Court, Lucas county; T. M. FEE, Judge. Action to recover damages for personal injuries inflicted through the negligence of defendant. There was a jury trial, which resulted in a verdict in defendant's favor. From a judgment rendered thereon assessing the costs of the action to plaintiff, he appeals. Reversed. Dungan & Bartholomew, for appellant; Stuart & Stuart, for appellee. WATERMAN, J. Plaintiff was in the employ of defendant, and, among other duties, had the care of several horses. On the occasion in question, as plaintiff was leading into a shed with a halter one of the horses, defendant stopped him, and undertook to apply a wash to a galled place on the animal's neck. The horse was nervous and restless, and would not stand, so a twitch was put on him, and plaintiff held this with the halter while the wash was applied. After the twitch was removed, defendant noticed another bruised spot on the animal's shoulder, and he attempted, without replacing the twitch, to wash this. The horse jumped aside, and struck defendant, throwing upon his clothes the medicine, which he had in a tin can in his hand. This angered defendant, who seized the twitch, the handle of which was a heavy stick with a nail in the end, and began violently and brutally beating the horse, which struggled to escape. Plaintiff tried, without avail, to induce defendant to desist. Finally, a blow aimed missed the horse because of a slip by defendant, and plaintiff was struck in the face, breaking the bones of his nose and otherwise injuring him. There was no evidence tending to show that the blow so struck was intentional. 1. The Court submitted the case to the jury on the theory of defendant's negligence, instructing them that the defendant would not be liable if in beating the horse he exercised reasonable care to avoid striking plaintiff, and the blow which inflicted the injury was caused by an accidental slip, for which defendant was not to blame. 2. The jury was further told, in effect, this would be so even if defendant, in beating the horse, was guilty of an unlawful act. In the ninth paragraph of the Court's charge, the jury were told: "It is not material or necessary for you to find whether or not the act of defendant in whipping or striking his horse was unlawful." It was claimed on behalf of appellant that, if defendant was engaged in the doing of an unlawful act which resulted in injury to plaintiff, such conduct would be negligence as matter of law. There was evidence going to show that defendant was guilty of a violation of § 4969 of the Code, which imposes a penalty for cruelty to animals. "The general rule of law is that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events." 1 Addison Torts, 7. In Messenger v. Plate, 42 Iowa, 443, defendant was sued for an injury caused by the unboxed tumbling-rod of a threshing machine; the statute made it a misdemeanor to operate a machine with such rods unboxed; this Court announced the following rule of law in that case: "We concur in the general proposition that whenever an act is enjoined or prohibited by law, and the violation of the statute is made a misdemeanor, any injury to the person of another, caused by such violation, is the subject of an action; and it is sufficient to allege the violation of the law as the basis of the right to recover, and as constituting the negligence complained of." So, likewise, it is held that, where one is unlawfully carrying a loaded revolver, he is liable for injuries done another by its discharge, although the person injured assented to the revolver being carried. Evans v. Waite (Wis.), 53 N. W. 445; see also Weick v. Lander, 75 Ill. 93; Salisbury v. Herchenroder, 106 Mass. 459; Conn v. May, 36 Iowa, 244. If the defendant was doing an unlawful act in beating the horse, he is liable for damages caused thereby, and the subsequent accidental slip would not shield him, for the reasons already stated. The wellknown "Squib Case" is a leading authority illustrative of the principle that one who wrongfully sets in motion a force by which another is injured is liable, although an intervening agency, not in itself wrongful, aided in producing the result. Scott v. Shepherd, 2 W. Bl. 892; 1 Smith, Leading Cases, 797. We do not regard the case of Tingle v. Railroad Co., 60 Iowa, 333, 14 N. W. 320, cited by appellee, as in conflict with the views here expressed. In that case the unlawful act (operating a train on Sunday) was a condition, but not a cause, of the injury done. For the reason given, the case must go back for a trial. Reversed. |