§ 427. Plaintiff, when his own case shows contributory negligence, may be nonsuited. — If, therefore, the plaintiff, in his own case, shows that he brought the injury on himself by his own carelessness, he may be nonsuited. But unless such a case be presented, the question of the plaintiff's negligence, like that of the defendant's, is for the jury.2 primâ facie case on part of the plaintiff. But he should have so answered the point that the jury might have been left free to consider the defects in the plaintiff's case. If ever there was a case in which this was a duty, it was in this case. The accident occurred in open day, on a broad public highway, by a rider running his horse so hard upon the shaft of a buggy, driven at an ordinary gait, as instantly to kill the horse, though there was plenty of room to pass without obstruction.' It is plain that Waters v. Wing in no way impinges upon the rule in Beatty v. Gilmore, but is entirely accordant with it. If the plaintiff's own evidence discloses facts which prove negligence, it is not necessary that the defendant should prove it. This almost self-evident proposition was subsequently affirmed in Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith, 30, while it was at the same time there distinctly ruled that if the plaintiff makes out a primâ facie case the burden is on the defendant to disprove care or show contributory negligence. "Had the plaintiff below fallen from the bridge in question, being of the width of eighteen feet, in broad daylight, there would be great reason for saying that it could only have happened from the want of ordinary care on his part, and to have taken the case from the jury. But certainly such bridges should be constructed and kept in repair so as to be safe for travellers by night as well as by day. But though there was no evidence of the circumstances of the fall from which any inference of negligence upon so dark a night could be inferred, nevertheless the learned judge below instructed the jury that 'if the plaintiff's injuries resulted either in whole or in part from the want of ordinary care and prudence on his own part he is not entitled to recover any damages.' In answer to one of the points, he had also said 'that the jury might properly give some weight to the fact that the plaintiff, who was a competent witness, present in court during the trial, had not been called to explain how the accident occurred.' If the plaintiff below had made out a primâ facie case, without his own testimony, he was certainly not bound to offer himself as a witness. The defendant might have called and examined him. Of all this the plaintiff in error has certainly no right to complain." 1 Holden v. Liverpool, 3 C. B. 1; Central R. R. v. Moore, 4 Zabr. 824; Brown v. E. & N. A. R. R. 58 Me. 384; Holly v. Bost. Gas Light Co. 8 Gray, 123; Gahagan v. Bost. & L. R. R. 1 Allen, 187; Trow v. Vt. Cent. R. R. 24 Vt. 487; Henning v. N. Y. & Erie R. R. 13 Barb. 9; Thringo v. Cent. Park Co. 7 Rob. 616; Brooks v. Somerville, 106 Mass. 271, cited supra, § 420; Wilds v. Hudson River R. R. 24 N. Y. 430; Hackford v. R. R. 53 N. Y. 654, cited supra, § 420; Langhoff v. R. R. 19 Wisc. 497; Rothe v. R. R. 21 Wisc. 258; Penns. R. R. v. Matthews, 36 N. J. 531. 2 Belton v. Baxter, 54 N. Y. 245; The burden of proof § 428. Employee against employer. is upon the employee to show both the negligence of the employer and his own care. But he is not bound to do more than raise a reasonable presumption of negligence on the part of the defendant.1 § 429. Burden when casus or necessity is set up. This branch of the subject has been already independently discussed.2 § 430. Burden in suits against gratuitous depositaries. - The burden of exculpation, in such suits, cannot be properly thrown on the defendant, unless there is some presumption of negligence raised by the plaintiff's case.3 Gillespie v. City, 54 N. Y. 468, and cases cited supra, § 155. 1 Greenleaf v. Ill. Cent. R. R. 29 Iowa, 14. 892 See supra, § 128. & Infra, § 477. BOOK II. NEGLIGENCE IN DUTIES BASED ON CON TRACT. CHAPTER I. GENERAL RULES AS TO NEGLIGENCE BASED ON CONTRACT. between the parties, § 439. Whoever by contract assumes a duty to an- | But such confidence must be immediate other person is liable in an action on the case to such other person for damages arising from the negligent performance of such duty, § 435. Confidence bestowed and accepted is a sufficient consideration, § 438. Nor can such a suit be maintained on the defendant's gratuitously undertaking a duty on which he does not enter, § 442. Action lies against those on whom public duty is imposed, § 443. § 435. Whoever by contract assumes a duty to another person is liable, in an action on the case, to such other person for damages arising from the negligent performance of such duty. Contract to do a particular thing.—Where a contract creates a duty, the neglect to perform that duty, as well as the negligent performance of it, is a ground of action for tort. Hence it is at the election of the party injured to sue either on the contract or the tort. For "if the law," says Lord Brougham, "casts any duty upon a person, which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures; "2 and although, as we will presently see, this liability, if based on contract, must be limited to persons whose confidence in the party owing the duty is immediate, yet with this limitation, which is involved in the strict meaning of the term "duty," 1 Addison on Torts (1870), p. 913; Boorman v. Brown, 3 Q. B. 526; 11 Cl. & F. 1; Robinson v. Threadgill, 13 Ired. 39; Central, &c. v. City, 4 Gray, 485; Ives v. Carter, 24 Conn. 392; Butts v. Collins, 13 Wend. 154. 2 In Ferguson v. Earl of Kinnoul, 9 Cl. & Fin. 289. the proposition as thus stated may be accepted as of universal application. § 436. Contract based on employment. The same rule obtains as to duties based on employment, though there be no specific contract. "Where there is an employment, which employment itself creates a duty, an action on the case will lie for a breach of the duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast." 1 § 437. Illustrations of this principle will be found in abundance in those portions of the following pages which treat of duties based on contracts. The most familiar are those arising from the engagements of common carriers. "Every person who enters upon the performance of the work of carrying merchandise or passengers is bound to exercise due and proper care and skill in the performance of the work, whether the work is done under a contract or gratuitously;2 and every person who has been injured by the negligent performance of the work of carrying, is entitled, as we have seen, to an action against the carrier, although he is no party to the contract under which the work was done." So a medical man is responsible to a person neglected by him for the negligence, though the contract to employ the medical man was made with a friend of the person neglected.1 § 438. Confidence bestowed and accepted is a sufficient consideration to sustain a suit for such damages. "The confidence induced by undertaking any service for another is a sufficient consideration to create a duty in the performance of it." This principle, in fact, lies at the root of the whole law of mandates, 1 Jervis, C. J.-Courtenay v. Earle, 10 C. & B. 83; Brown v. Boorman, 11 Cl. & F. 44. See Holmes v. N. E. R. C., L. R. 1 Ex. 254; Indermaur v. Dames, L. R. 2 C. P. 311; infra, § 547. statute; and Marshall v. York, Newcastle & B. R. R. 11 C. B. 655; Gerhard v. Bates, 2 E. & B. 476; Behn v. Kemble, 7 C. & B. N. S. 260; Hall v. Cheney, 36 N. H. 26; and cases of free passengers cited supra, § 355; 2 See Austin v. Gt. West. R. R., L. infra, § 547, 641. R. 2 Q. B. 442. * Addison on Torts (1870), p. 914; citing Collett v. Lond. & N. W. R. 16 Q. B. 989, where a railway company was held liable for negligence in carrying officers of the post-office, whom they were bound to carry safely by Pippin v. Shepherd, 11 Price, 40; Gladwell v. Steggall, 5 Bing. N. C. 733; 6 Exch. 767. See Longmeid v. Holliday, 6 Exch. 767; infra, § 730-7. Mr. Smith, in his note to Coggs v. Bernard, Smith's Lead. Ca. 6th ed. 193; adopted in Broom's Com. 680. to be hereafter discussed.1 So, as is stated by a learned Massachusetts judge," For an injury occasioned by want of due care and skill in doing what one has promised to do, an action may be maintained against him in favor of the party relying on such promise and injured by the breach of it, although there was no consideration for the promise."2 And again, by another judge of the same court: "If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed, shall not suffer loss or injury by reason of his negligence." 8 § 439. But such confidence must be immediate between the parties to the suit.—"Privity of contract," indeed, to employ one of the old terms, is not in such case essential. If a carrier employed by me to transport my servant on the cars neglects his duty, my servant cannot sue him on the contract, because there is no privity of contract between the two; and if the contract is to be sued upon, it must be by myself. But the servant, being the party injured, may sue the carrier in an action on the case, in which privity of contract is not necessary, but which is based on injuries directly received; and in such a suit the servant alone can sue. So I may engage a physician to attend a hospital; and if he neglects his duty to a particular patient in that hospital, who thereby suffers, he is liable to me in an action on the contract, but to the patient, in an action on the case.7 1 Infra, § 490-501, 503, 547, and cases there cited; and also infra, § 641. 2 Ames, J.-Gill v. Middleton, 105 Mass. 479; citing Benden v. Manning, 2 N. H. 289; Thorne v. Deas, 4 Johns. R. 84; Elsee v. Gatwood, 5 T. R. 143; Shiells v. Blackburne, 1 H. Bl. 158. Bigelow, C. J., in Sweeny v. O. C. & N. R. R. 10 Allen, 368, adopted by Hoar, J., in Coombs v. New Bed. Cord. Co. 102 Mass. 572. "The general rule of law,” says Gray, J., in delivering the judgment of the court in a late Massachusetts case, "is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an action by the latter." Exchange Bk. v. Rice, 107 Mass. 37. 5 Marshall v. York, &c. R. R. 11 C. B. 655. Alton v. Midland R. R. 19 C. B. N. S. 213; Fairmount R. R. v. Stutler, 54 Penn. St. 375. Pippin v. Shepherd, 11 Price, 40; Gladwell v. Steggall, 5 Bing. N. C. |