cannot use an old brake which will stop a train in less than 1,000 feet, when running ten miles per hour, when other companies use brakes that will stop a train in 500 feet, running at the same rate of speed.1 So the faithful use of the brakes is required.2 3 § 810. Omission to have time-tables. - So far as concerns operatives on the road this may be negligence. But the omission to provide regulations for the movement of trains engaged in and about the freight and engine-houses and depots of the company is not negligence, such a mode of regulation being impracticable; 4 at the same time it is practicable to prescribe in what manner engineers and conductors shall give notice of the approach of an engine, with or without cars, when trains are being made up, or moving about freight-houses, depots, or engine-houses. And if proper precautions are not taken for the protection of life and limb from injury by such engines and trains, a person injured, who is not an employee of the company, has just cause of complaint, and is entitled to recover damages for any injury sustained by reason of the omission of the company to adopt all reasonable guards against liability to injury.5 § 811. Shooting car, without brakeman, round a curve on a plot of ground belonging to the company, but where persons were accustomed to congregate. If a dangerous agency is let loose in a place where persons are likely to be, it is no defence, as has been already seen, that they are trespassers. Hence it has been correctly held, in Pennsylvania, where the agents of a railroad company detached a car and permitted it to run loose, without a brakeman, round a curve on a piece of ground belonging to the company, to a place where persons were accustomed to congregate, whereby a boy standing on the track was injured, that the company were liable for the injury.7 1 Costello v. The Syracuse, B. & N. Y. R. R. Co. 65 Barb. 92. 7 Kay v. Penn. R. R. Co. 65 Pa. State, 269. Agnew, J.: "But the 2 Ill. Cent. R. R. v. Baches, 56 Ill. learned judge in the court below rested 379. 8 Matteson v. R. R. 62 Barb. 364, cited supra, § 798. his conclusions as to negligence chiefly on the decisions in Phila. & Read. Railroad Co. v. Hummel, 8 Wright, See Phil. & R. R. R. v. Spearen, 375, and Gillis v. Penna. Railroad Co. 47 Penn. St. 300. 9 P. F. Smith, 129. . . . . Nor is 5 Haskins v. N. Y. Cent. R. R. 55 Gillis v. Railroad Co. 9 P. F. Smith Barb. 129. 6 Supra, § 344, 345, 364. (5 Penn. St.), any more applicable. That case was well decided on its cir cumstances, but its principle does not touch this case. The precise ground on which the decision is rested, is that the railroad company had done nothing to invite the public upon the platform that gave way, and therefore no duty lay on them to maintain such a structure as would support the dense crowd, that out of curiosity perilled their persons upon it. The platform was in no sense a public way, but was erected for the accommodation of passengers arriving and departing in the train. Though it was open, and a general permission to pass over, yet the plaintiff had no legal right there, and his presence was in nowise connected with the purposes for which the platform was erected. He was there merely to enjoy himself and gratify his own feelings, and by no act of the company." But Shars wood, J., proceeds to say: "Had it been the time for the arrival or departure of the train, and he had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by authority of defendants, as much as if he was actually a passenger, and 682 it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stand in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand upon it. As to all others, they were liable only for wanton or intentional injury.” Thus in Gillis v. Railroad Co., it will be seen that the negligence alleged was purely of a negative character, in omitting to keep up a structure sufficient to bear the weight of a crowd unexpectedly and exceptionally gathered upon it, for their own curiosity, and for no purpose connected with the use of the railroad. But in the present case the negligence charged consisted of a positive act of carelessness, in sending a car around a curve out of sight, on a descending grade, at a place where persons might be expected to be, from the permissive use suffered by the company. It was the duty of the court therefore to have submitted the facts to the jury for their determination, whether there was negligence or not.” CHAPTER III. INJURIES CAUSED TO TRAVELLERS AND VISITORS BY OWNERS OF LAND OR HOUSES. I. Obstructions and defects in highways, § 815. Persons placing defect on highway liable, § 815. Making excavation on and under highway, § 816. Necessary obstruction of highway in building, loading, &c., § 816 a. Owner out of possession not liable for tenant's negligence, § 817. No defence that negligence was by contractor, § 818. Railroad changing course of highway, § 819. Negligent driving in public road, § 820. Care to be such as careful drivers are accustomed to use, § 820.a. Speed to be proportioned to danger, § 820 b. Suddenly whipping or spurring horse close to traveller, negligence, § 820 c. So of driving rapidly in a crowd, § 820 d. So of leaving horse unattended, § 820 e. When liability for latent viciousness, § 820 f. And for defective carriage, § 820 g. And for driving on wrong side of road, § 820 h. Causing other horses to take fright, § 820 i. Negligently passing another on road, § 820 k. Distinctive law as to horse-cars and sleighs, § 820. Drunken driver, § 820 m. Contributory negligence, § 820 n. II. Obstructions and defects in platforms and approaches of railway companies, § 821. Company must have its platform and approaches safe, § 821. III. Obstructions and defects in approaches to steps, § 822. IV. Obstructions and defects in private inclosures, § 824. Wanton negligence to trespassers creates liability, § 824. No liability for ordinary imperfections of private grounds, § 824 a. V. Obstructions and defects in private houses, § 825. No liability for defects ordinarily in- But otherwise as to gross defects No liability when plaintiff had notice, Landlord's liability to tenant's visitors, § 834. VI. Objects on highway calculated to frighten horses, § 835. Liability exists in such case, § 835. Frequency of travel on road to be VII. Things falling on and injuring travellers, § 839. Negligent to retain such things near highway, § 839. Ice, snow, and water falling from roof, § 843. Mere falling not enough; must be something to indicate negligence, § 844. When thing is dropped by servant, § 845. The § 815. Person placing obstruction on highway liable. duty of the public authorities in making and repairing public roads will be hereafter independently considered. Under the present head we will be limited to the consideration of the obstruction or endangering through the negligence of individuals.1 And it is a general axiom that an individual who negligently causes a defect on a highway by which travellers are injured is liable for the injury.2 1 Com. v. King, 13 Metc. 115; Congreve v. Smith, 18 N. Y. 79; Hart v. Albany, 9 Wend. 607; Heacock v. Sherman, 14 Wend. 58; Balt. v. Marriott, 9 Md. 160; Linsley v. Bushnell, 15 Conn. 225; Barnes v. Ward, 9 C. B. 392; Bush v. Steinman, 1 B. & P. 404; Robbins v. Jones, 15 C. B. (N. S.) 221. See this topic fully examined in Whart. Crim. Law, 7th ed. § 2414 et seq. 2 No person, whether he be owner or not, has the right to obstruct a highway, either by placing obstructions or making excavations therein. Such obstructions are public nuisances, and may be abated by any person injured thereby. And the person making such obstruction is liable to the injured party for such damages as may be sustained by reason thereof. So, also, digging post-holes in a street is a public nuisance, although it be done in a part of the street not used, nor susceptible of use, by the public, by reason of natural obstructions therein.1 When the act done is a nuisance, the liability of the party causing it, for the consequences, follows as a matter of course, provided the person injured 1 See infra, § 885. by such act is himself free from negligence. Wright v. Saunders, 65 Barb. 214. Persons putting obstructions on a public road are not discharged from liability by the fact that the municipal or state authorities are also liable for damage from such nuisance. Nor is it necessary that such obstructions or nuisances should be directly on the road. It is enough if they are so close to it as to make travelling dangerous. Thus in an English case the evidence was that the plaintiff, in passing along a highway at night, fell into a hoist-hole," which was within fourteen inches of the public way, and unfenced. The hole formed part of an unfinished warehouse, one floor of which the defendants were permitted to occupy whilst a lease was in course of preparation, and the aperture was used by the defendants in raising goods from the basement to an upper floor. It was held, that the defendants had a sufficient occupation of the premises to cast upon them the duty of protecting the hoist-hole; and that the hole was 2 Tobin v. P., S. & P. R. R. 59 Me. 183. § 816. Person making excavation by or under highway is bound to the diligence of a good business man.1 - It has undoubtedly been held that a person excavating, though with legal title, under a highway is bound, no matter what may be his care, for the injuries thereby caused to a traveller on the highway. But this is at variance with the principle that no one in exercising a lawful calling is liable for anything more than the diligence of a good business man in such calling; and is inconsistent with more recent and better considered cases, which hold that if such work is done with the care good business men are accustomed to near enough to the highway to constitute a nuisance.1 Even where a bridge is placed by a private person over a highway, with the consent of the road-builders, the person erecting the bridge is liable for injuries sustained by a traveller from defects caused by its decay. Thus, where the defendant, with the consent of a turnpike company, crossed their road with a railroad for his individual use, and raised the bed of the turnpike, passing over it with a bridge, it being his duty to keep the bridge in repair; and the original railing of the bridge having decayed, the plaintiff fell over it on a dark night, and was hurt, it was held that the defendant was liable.2 See also Phoenix v. Phoenixville Iron Co. 9 Wright, Penn. 135; Perley v. Chandler, 6 Mass. 454; Dygert v. Schenck, 23 Wend. 446. Cellar doors and flap doors are often lawfully connected with a public street; and in this case the duty of the owner is limited to covering and guarding the entrances in such a way as good mechanics are accustomed to adopt for such purposes. Fisher v. Thirkell, infra; Daniels v. Potter, 4 C. & P. 262; Proctor v. Harris, 4 C. & P. 337. 1 Hadley v. Taylor, Law Rep. 1 C. P. 53. 3 Proof of the fact that the defendant dug a ditch across a public sidewalk, and allowed it to remain open in the night-time, with no provision for warning or protecting travellers, establishes negligence, as matter of law, and a refusal to submit this question to the jury is no error. Evidence of permission from the proper city authorities to open such ditch furnishes no defence, where the action is based upon negligence instead of a trespass. Sexton v. Lett, 44 N. Y. 430. In this case it was said by Earl, C.: "It is a well settled rule that a person who interferes with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises. Creed v. Hartmann, 29 N. Y. 591; Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, 18 N. Y. 84.” 1 See infra, § 885. 2 Congreve v. Morgan, 5 Duer, 495; S. C. 18 N. Y. 79; Irvin v. Fowler, 5 Robertson, 482; Horman v. Stanley, 66 Pa. St. 464; Atlanta R. R. v. Wood, 48 Ga. 565. Supra, § 30-54. 2 Hays v. Gallagher, 72 Penn. (22 P. F. Smith) 136. |