Nos. 3, 4. Пlott v. Wilkes; Bird v. Holbrook. - Notes.

In the recent case of Quigley v. Clough, 173 Massachusetts, 429, the Court says that the earlier case of Marble v. Ross, 124 id. 44, which held that the facts that the plaintiff was a trespasser, and that he knew that the vicious stag in the defendant's pasture, which was the active source of his injury, was there and was dangerous, would not defeat his action, goes at least to the verge of the law.

It is also settled here that a land-owner is not required to warn trespassers of hidden or secret dangers in his premises, or to protect them, by fences or otherwise (apart from statute), against every injury that may result from his own acts or those of third persons; and even the fact that the trespasser is an infant of tender years does not raise such a duty where none otherwise existed. Spinner v. New York Central & Hudson River R. Co., 67 New York, 153, 156; Purdy v. New York & New Haven R. Co., 61 id. 353; Mugford v. Boston & Maine R. Co., 173 Massachusetts, 10; Pittsburgh, Fort Wayne & Chicago R. Co. v. Bingham, 29 Ohio State, 364; Buch v. Amory Manuf. Co., 69 New Hampshire, 257; Shea v. Concord & Montreal R. Co., id. 361; Casista v. Boston & Maine R. Co., id. 649; Hanna v. Terre Haute & Indianapolis R. Co., 119 Indiana, 316; Lingenfelter v. Baltimore & Ohio Southwestern R. Co., 154 id. 49; Brady v. Prettyman, 193 Pennsylvania State, 628; Ritz v. Wheeling, 45 West Virginia, 262. And as it is a duty recognized by the common law, on the part of the owner of cattle, horses, dogs, and the like, to fence them in, and not the duty of his neighbor to fence them out, the latter is not liable if such animals, straying upon his land, are there injured by pitfalls not immediately contiguous to his boundaries, or there eat noxious substances which he has left exposed. See Bush v. Brainard, 1 Cowen (N. Y.), 78; Munger v. Tonawanda R. Co., 4 New York, 349; Lyons v. Merrick, 105 Massachusetts, 71; Bradbury v. Gilford, 53 Maine, 99; Aurora Branch R. Co. v. Grimes, 13 Illinois, 585; Illinois Central R. Co. v. Carraher, 47 id. 333; McGill v. Compton, 66 id. 327; Durham v. Musselman, 2 Blackford (Ind.), 96; Young v. Harvey, 16 Indiana, 314; Penso v. McCormick, 125 id. 116; Klenberg v. Russell, id. 531; Williams v. Michigan Central R. Co., 2 Michigan, 259; Hess v. Lupton, 7 Ohio, 216; Hughes v. Hannibal & St. Jo. R. Co., 66 Missouri, 325; Maltby v. Dihel, 5 Kansas, 430; Poindexter v. May, 98 Virginia, 143, 34 Southeastern Rep. 971, 47 Lawyers' Reports Annotated, 588.

The land-owner may lawfully repel force by force in defence of his person, habitation, or property, and the placing of spring-guns within one's habitation or shop for defence against burglary or murder, is justifiable, though the criminal trespasser be killed. State v. Moore, 31 Connecticut, 479; Gray v. Combs, 7 J. J. Marshall (Ky.), 478. But as to maiming or killing mere trespassers by traps, spring-guns, or ferocious dogs, or the destruction of another's trespassing animals thereby or by poison, if the early English decisions, which were afterwards restricted by statute, authorize their destruction without other distinction than the question of notice, they cannot be regarded as accurately representing the law in this country, though the American decisions are not in entire harmony. In Johnson v. Patterson, 14 Connecticut, 1, SHERMAN, J., in reviewing this question, said: "Our people, hitherto, have never, by their usages, acknowledged this to be the common law of the state; and its adopVOL. XXV. — -8

Nos. 3, 4.-Ilott v. Wilkes; Bird v. Holbrook. — Notes.

tion, in its full extent, would tend to impair the moral sense, and that tender regard for the lives and property of others, for which they are distinguished, and which ought to be cherished, as essential to the virtue and harmony of society." See Aldrich v. Wright, 53 New Hampshire, 398, 404; Clark v. Keliher, 107 Massachusetts, 406, 409; Birge v. Gardiner, 19 Connecticut, 507, 512; Simmonds v. Holmes, 61 id. 1; Woolf v. Chalker, 31 id. 131; Hodges v. Causey, 77 Mississippi, 353, 48 Lawyers' Reports Annotated, 95; Hubbard v.\ Preston, 90 Michigan, 221, 15 L. R. A. 249; Hooker v. Miller, 37 Iowa, 613.

A notice to keep off of certain land, without regard to its purpose, is sufficient to rebut any presumption of license, and places one in the position of a trespasser, if he does not observe it. Anderson v. Northern Pacific R. Co., 19 Washington, 340. In this and similar recent cases the question is discussed as to the right of recovery of one who enters, by night or day, upon another's unfenced premises on which are excavations or deep pools of water settled therein; these decisions substantially agree that neither municipalities nor individuals are bound to take precautions to protect uninvited trespassers upon their lands, which are not a part of a public highway, or dangerously near thereto. Peters v. Bowman, 115 California, 345; Hayes v. Michigan Central R. Co., 111 United States, 228, 236; Union Pacific R. Co. v. McDonald, 152 id. 262; Price v. Atchison Water Co., 58 Kansas, 551; McDonnell v. Pittsfield & North Adams R. Co., 115 Massachusetts, 564; Howland v. Vincent, 10 Metcalf (Mass.), 371; McIntire v. Roberts, 149 id. 450; Harobine v. Abbott, 177 id. 59; Zoebisch v. Tarbell, 10 Allen (Mass.), 385; Cleveland T. & V. R. Co. v. Marsh (Ohio), 58 Northeastern Rep. 821; Norwich v. Breed, 30 Connecticut, 535; Dobbins v. Missouri, Kansas & Texas R. Co., 91 Texas, 60; Delaware, Lackawana & Western R. Co. v. Reich, 61 New Jersey Law, 635; Omaha v. Richards, 49 Nebraska, 244; Bowman v. Omaha, 59 id. 84; Herrick v. Wixom, 121 Michigan, 384, 389; Cooper v. Overton, 102 Tennessee, 211; Stendal v. Boyd, 73 Minnesota, 53; East Tennessee & W. N. C. R. Co. v. Cargille (Tenn.), 59 Southwestern Rep. 141; Lary v. Cleveland, Columbus, Cincinnati, & Indianapolis R. Co., 78 Indiana, 323; Indiana, Burlington, & Western R. Co. v. Barnhart, 115 id. 399, 408; Jones v. Nichols, 46 Arkansas, 207; Beck v. Carter, 6 Hun (N. Y.), 604; San Antonio & Arkansas Pass. R. Co. v. Morgan, 92 Texas, 98; Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyoming, 537, 79 Pacific Rep. 159; see 11 Harvard Law Review, 349; 2 id. 506; 49 Central Law Journal, 222. In Sisk v. Crump, 112 Indiana, 504, 510, one who maintained a barbed wire fence along his premises where they adjoined a highway was held liable for the death of a horse wandering on the highway, which in grazing became entangled in the fence, the Court saying: "We regard the location of the dangerous fence immediately along the line of the highway as an important element in the case. The strong probability that the pasture within the enclosure, and the presence of other horses feeding there, would allure horses on the highway to enter it, rendered such a fence almost certain to injure passing animals." See Quigley v. Clough, 173 Massachusetts, 429.

A trespasser, who is upon another's premises wrongfully, and a mere volunteer stand upon substantially the same footing, and both are entitled to recover only for such negligence as occurs after the owner or his servants discover his perilous situation, — that is, for wilful or intentional injury. But there is

No. 5.- Bayley v. Manchester, Sheffield, &c. Ry. Co., L. R. 8 C. P. 148. Rule.

another class between these, viz.: where the person coming on the premises assists the owner's servant at the servant's request in the master's work, and also for a purpose and benefit of his own; in which case, being there by sufferance, and not as a fellow-servant, he is entitled to be protected against the negligence of the owner or his servants. Street R. Co. v. Bolton, 43 Ohio State, 224; Cleveland T. & V. R. Co. v. Marsh (Ohio), 58 Northeastern Rep. 821; Church v. Chicago, Milwaukee, & St. Paul R. Co., 50 Minnesota, 218; Eason v. S. & E. T. R. Co., 65 Texas, 577; see W. B. Conkey Co. v. Busherer, 84 Illinois Appeals, 633. But, as no one has the right to enter upon another's premises for the purpose of inducing his servant or employee to leave him, such a person does not enter by any implied invitation, but is a trespasser. Webber v. Barry, 66 Michigan, 127, 11 American State Reports, 466, and note.

No. 5. BAYLEY v. MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAILWAY COMPANY.

(EX. CH. 1873.)

No. 6. BANK OF NEW SOUTH WALES v. OWSTON.

(P. c. 1879.)

RULE.

WHERE a tort is committed by a servant acting within the scope of his authority, the master is liable although in the particular act the authority was abused. But where the servant was not acting within the scope of his authority the master is not liable.

Bayley v. Manchester, Sheffield, and Lincolnshire Railway Co. L. R. 8 C. P. 148-156 (s. c. 42 L. J. C. P. 78; 28 L. T. 366).

Master and Servant.

Railway Company, Responsibility of, for Act of [148]
Servant. Scope of Employment.

The plaintiff, a passenger on the defendants' line of railway, sustained injuries in consequence of being violently pulled out of a railway carriage, just after the train had started, by one of the defendants' porters, who acted under an erroneous impression that the plaintiff was not in the right train for the place to which he had booked. The defendants' rules, a copy of which was given to each porter in their employ, assigned various specific duties to the porters, among others, that of not suffering passengers to get in or out of trains in motion, and concluded with a general direction that they were to do all in their power to promote the comfort of the passengers and the interests of the

No. 5. Bayley v. Manchester, Sheffield, &c. Ry. Co., L. R. 8 C. P. 148, 149.

company. It was proved to be the duty of the porters to prevent passengers going by wrong trains, as far as they could do so, but it was not their duty to remove passengers from the wrong train or carriage :

Held, affirming the decision of the Court below, that there was evidence on which the jury might find that the act of the porter in pulling the plaintiff out of the carriage was an act done within the course of his employment as the defendants' servant, and one for which they were therefore responsible.

This was an appeal by the defendants against the judgment of the Common Pleas discharging a rule to enter a nonsuit. The facts, as stated in the case on appeal, were in substance as follows:

1. This cause came on for trial at the Cheshire Spring [* 149] Assizes,*1872, before Baron CHANNELL. The action was brought by the plaintiff to recover compensation from the defendants for bodily injuries sustained by him under the following circumstances:

2. The plaintiff, on the 26th of July, 1871, took a ticket by the defendants' railway from a station called Guide Bridge, on the defendants' line, to Stockport, by a train which left Guide Bridge between half-past six and seven o'clock on the evening of that day, intending to get thence to Macclesfield.

3. The plaintiff, after taking a third-class ticket by the defendants' line as before mentioned, proceeded to enter and take his seat in a third-class carriage forming part of the train. Upon his doing so one of the porters in the employ of the defendants asked him where he was going to, to which he replied, "To Woodley, and thence to Stockport and Macclesfield." The porter rejoined, 'You are in the wrong train, you must come out," and immediately, and just as the train was moving off, violently pulled the plaintiff out and threw him down on the platform. The plaintiff, by the fall under the circumstances above-mentioned, sustained the bodily injuries in respect of which this action was brought. The plaintiff was in fact in the proper train, and in that by which he intended to travel.

It was proved that it was part of the duties of the porters to prevent passengers going by wrong trains, as far as they were able to do so.

4. The rules and bye-laws of the company were put in evidence on behalf of the defendants, and it was further proved that the porters and servants of the company, including the porter whose

No. 5.- Bayley v. Manchester, Sheffield, &c. Ry. Co., L. R. 8 C. P. 149, 150.

conduct caused the injury to the plaintiff, were supplied with copies thereof.

5. Among the rules and bye-laws were the following:

RULE 71. Clerks in charge, station masters, guards, police, and porters are on no account to suffer passengers to get into or out of the carriages while the trains are in motion, in contravention of the bye-laws; and the names and addresses of any persons persisting in so offending are to be immediately reported to the superintendent of the line.

RULE 92. Porters are to act under the orders of the clerks in charge, station masters, station inspectors, and foremen. They are to do the work and attend to whatever business they may have assigned to them, exerting themselves for the good order, regularity, and cleanliness of the trains and stations where they are placed, and do all in their power to promote the comfort of the passengers and the interests of the company.

* RULE 101. If the clerk in charge or guard has rea- [*150] son to suppose that any passenger is without a ticket, or

is not in the proper carriage, he must request the person to show him his ticket, have any irregularity corrected, and the excess fare paid if any is due; and should any passenger wish to change his place from an inferior to a superior carriage, the guard must see the excess fare paid at the station where the change is made. RULE 105. The doors of the carriages on the off side are always to be locked, and guards must see that passengers keep their seats in case of any stoppage on the road, except when necessary to alight, and exert themselves to prevent passengers getting in or out of the train while in motion.

RULE 107. Smoking in the carriages and at the stations must not be allowed; and in the event of any passenger being disorderly or misconducting himself, the guard must endeavour to stop the nuisance, but in case he cannot succeed by gentle means, he must take such a course as may be considered necessary, and either place the offender in a compartment alone or leave him at the next station, according to circumstances, in all cases obtaining and reporting his name and address, if possible, to the superintendent of the line.

BYE-LAW 4.

Smoking is strictly prohibited, both in the carriages and in the company's stations or premises. Every person smoking in a carriage, or in any station, or upon any of the com