passing laws impairing the obligations of a contract. The unconstitutional provisions, however, being separable from the main provisions, do not invalidate the entire act. The opinion of the court, by Chief Judge Parker, is lengthy, thorough and carefully prepared. It was concurred in by all the members of the court except Judge Bartlett, who read a dissenting opinion, and Judge Haight, who did not vote. The following important paragraphs are taken from the prevailing opinion: All franchises come from the State, although the legislature may, and often does, delegate to municipal authorities the right to take final action in the procedure resulting in the creation of a franchise. (Ghee v. Northern Union Gas Co., 158 N. Y. 510, 513.) The effect of such action, if within the legislative permission, is to allow the grantee to carry on the business authorized by the franchise. All rights not expressly granted by it are, as we have seen, reserved. The rights thus reserved include in part the granting of a franchise to another corporation to carry on the same business in the same territory. The power to grant the additional franchise, as well as the first one, the municipality acquires from the legislature, which has the power to determine whether the rights reserved upon the grant of the first franchise shall be exercised by a private corporation or by the municipal corporation. It may well be that competition by the municipality more seriously affects the earning capacity of the private corporation than would the competition of another private corporation: but the test of legislative power in such case is not whether the agency selected to construct and operate competing waterworks is effective or otherwise, but whether the statute providing for the agency also contains provisions assisting it to impair or destroy the property of the private corporation by other means than competition. Judge Bartlett urged that the property of the old company should be purchased by private contract or condemned under the statute before the municipal water company was permitted to begin work on its plant, and that the legislature possessed no power to authorize a village to organize a water company when its trustees had previously granted a franchise for a private corporation to do the same thing. Apropos of the Molineux trial, the following English view of the jury question, from the London Law Journal, undoubtedly will be of interest: It is fortunate that in England resort is not often had to the common-law rights of challenging jurors, and that unwillingness of jurors to serve is not so great that it cannot be overcome by an occasional fine. We have not even found need for a law book on the jury laws, and it is to Ireland and the United States that we have now to look for the literature and practice as to challenges. In a recent trial in New York of one Molineux for murder, challenges and claims of exemption were so numerous that it took about a month to get a full jury, during which period the luckless jurors who were not exempt, or had not been successfully challenged, had to remain in the court awaiting the completion of their dozen. The list of exemptions in England is sufficiently long, but jury trials are less protracted, and, on the whole, less frequent than in the United States: and our climate and the existence of a larger leisured class permit us to discharge public duties with more patience than our enterprising cousins across the seas. Notes of Cases. Negligence Invitation by Doorman to Passengers at Railroad Station to Cross Track Ahead of Incoming Train. In Beecher v. Long Island R. R., decided by the New York Court of Appeals, on January 9, 1900 (MS.), it appeared that a railroad company had for many years, at a certain hour every morning, started a train on the second track from one of its suburban stations to the city, and upon announcement by the doorman of the train travelers would rush out and across the first to the second track to take it; that on the morning in question the usual announcement was made by the doorman, whereupon the plaintiff's testator, without looking or listening, hur ried out with the crowd towards the second track. when he was struck and killed by a train which had been negligently run in on the first track as he was crossing it. It was held that the question of the testator's contributory negligence should be left to the jury; that in such a case it is a question for the jury to say whether the announcement by the doorman did not constitute an invitation to passengers to pass out and over to the second track, and an assurance that the way was free from obstructions, and would remain so for a easonable time to enable them to pass in safety. The following is the opinion: PARKER, Ch. J. The plaintiff's testator having either looked nor listened as the train approached which caused his death, the query is whether the court must say that his negligence contributed to the result or the jury may say that it did not. The jury were at liberty to find from the evidence before it that the defendant had started the train on the south track substantially every morning for many years, and that during all that period of time, upon the announcement by the doorman of the rapid transit for Brooklyn," the people were accustomed to rush out of the station, over the station platform to the north tracks, then across them to and upon the platform, in readiness to board the train as soon as it came to a stop; and that this custom had been so long continued that such an announcement by the doorman on the morning in question constituted an invitation to every passenger there, including the plaintiff's testator, to pass out of the station, across the station platform, then over the north tracks and to the platform of the south track, with the assurance that the way was not only free from obstructions. but would remain so for such a reasonable time as would enable them to pass to the train in safety. and, therefore, it was for the jury to say whether in accepting that invitation and proceeding as plaintiff's testator did, without looking and listening, and in the manner described by the witnesses, he was nevertheless exercising that reasonable care and caution which the situation demanded. Cases in which the principle is invoked which lies at the foundation of this decision are Terry v. Jewett (78 N. Y. 338), Brassel v. N. Y. C. & H. R. R. R. (84 N. Y. 241), Palmer v. N. Y. C. & H. R. R. R. (112 N. Y. 234), Oldenburgh v. N. Y. C. & H. R. R. R. (124 N. Y. 414). bined whole, there is a use legitimate, therefore permissible, for every man's exertions and estate; but it is unlawful for one to employ either in a way to injure those parts of the combined whole which belong to others." (Bishop, Non-Contract Law, sec. 14.) Hence, upon all men is enjoined the duty to exercise ordinary care and caution so to conduct themselves and to use their own that injury to another shall not result. There cannot be neglect without the existence of a corresponding duty." (Kennedy v. Chase, 119 Cal. 637, 640; 63 Am. St. Rep. 153, 156.) It is therefore clear that an action based on negligence is an appeal to the law's remedies to compel compensation for injury resulting from breach by the defendant of a duty by him owed to the plaintiff. Now, first, upon what principle rests the rule giving immunity to the invader of another's rights if there be contributory negligence" in any degree on part of that other? And second, upon what principle can the contributory negligence of one be imputed to another in fact in nowise guilty of it? First. By a number of courts and some authors, the rule of contributory negligence is regarded as one of the law's principal foundation stones and of great antiquity. In Railroad v. Aspell (23 Pa. St. 147: 62 Am. Dec. 323) plaintiff, a passenger carried by his station, jumped from the platform of his car, although warned to desist, and was seriously hurt in consequence. Said Black, Ch. J.: It has been a rule of law from time immemorial, IMPUTED CONTRIBUTORY NEGLIGENCE. and it is not likely to be changed in all time to T HE reason for any rule is, necessarily, a controlling factor in determining its validity and its scope. "And hence it is that our lawyers are, with justice, so copious in their encomiums on the reason of the law; that they tell us that the law is the perfection of reason; that it always intends to conform thereto and that what it not reason is not law." (Blackstone, Vol. 1, p. 70.) For "The law consists, not in particular instances and precedents, but in the reason of the law; for the reason is the life of the law-nay, the law itself is nothing but reason." (Broom's Legal Maxims, p. 153, quoting from Lord Holt, in Ashby v. White, 2 Lord Raym. 957, and from Co. Litt. 97b.) Hence it is well said that whoso knoweth not the reason of the law, knoweth not the law. The principle affixing liability to negligent conduct injurious to another is readily perceived and easily understood. "Among people living together on our crowded earth, there are, necessarily, more or less rights and interests of person and property in a measure depending upon one another. * * * As individuals and their property exist, not only separately but also in a com come, that there can be no recovery for an injury caused by the mutual default of both parties." This language, delivered in 1854, is quoted by Beach (Contributory Negligence, sec. 14); yet it seems that until April 22, 1809, the English speaking world lived in ignorance of this rule so solicitous for the welfare of wrongdoers, for not until that date was pronounced the judgment on motion for new trial in Butterfield v. Forrester (11 East. 60; 10 Rev. Rep. 433), of which case Beach himself says: "This is believed to be the earliest reported case in the English law in which the general rule as to contributory negligence is distinctly announced." (Section 8.) And, Sir Fred. Pollock, in preface to Vol. 10 of the "Revised Reports," says: "Butterfield v. Forrester is the first of the modern line of cases on contributory negligence." The "rule of law from time immemorial" of the learned and able Jeremiah Black has been, when he wrote, forty-five years known to men. Looking into the facts of the Butterfield case to ascertain the principle determining it. it is seen that the defendant, to enable repairs to be made upon his house, which was close to the road side at one end of the town of Derby, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction; that at eight o'clock of an August evening when they were just beginning to light candles, but while there was light enough to discern the obstruction at one hundred yards distance, plaintiff left a drinking house not far from the obstruction and, riding at the utmost speed of his horse and for that reason observing no obstacle, rode against the pole, fell with his horse and was much hurt in consequence. At the trial, Bayley, J., instructed that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction, while plaintiff was riding extremely hard and without ordinary care, the verdict should be for the defendant. On motion by plaintiff for a new trial, Bayley, J., said: "The plaintiff was proved to be riding as fast as his horse could go, and this through the streets of Derby. If he had used ordinary care, he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault." Whereupon, Lord Ellenborough, Ch. J., said (of course, speaking of the record before him): “A party is not to cast himself upon an obstruction that has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride against him. One person being in fault, will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant and no want of ordinary care to avoid it on the part of the plaintiff." It will be observed that in this case the defendant's injuries resulted from highly reprehensible conduct on his part. i. e., riding at full speed and recklessly through the streets of Derby, thus presenting the question whether one so defiantly violating his social duty and, in that very act injured, though in consequence of a like breach of duty in another, would be heard in the courts to complain of that other. Clearly that was the question the case answered. But the doctrine was soon extended and to cases to which the formula announced in the Butterfield case was inapplicable (see remarks of Redfield, J., in Robinson v. Cone, 22 Vt. 213), the courts assuming that the reason in all cases for refusing relief was the wrong of the plaintiff. (See 1 Hill, Torts, 124 et seq.; Addison on Torts, vol. 1, pp. 36 and 609: Shearman and Redfield, sec. 25 (3d Ed.); Moak's Underhill on Torts, p. 280; Thompson on Negligence, pp. 1146-7.) As late as 1889. Bishop (sec. 460, Non-Contract Law), wrote: "Obviously, it is a particular instance within the wider doctrine that a court of law will not give redress to a plaintiff whose case shows wrong in himself in the very matter whereof he complains. * ** A familiar expression of it is that one coming into court must come with "clean hands.” And a familiar illustration is that if two persons. join in a tort and one of them pays the damages, he cannot enforce contribution against the other. * * * To reject the rule of contributory negligence therefore, would not only reverse a line of decisions extending back to early times, but it would likewise take away from our legal structure a foundation pillar whereon a much larger portion of it than mere negligence, rests." In accordance with this theory Keefe v. Railway (92 Iowa, 182) was determined. There, a workman was employed where directed in a railroad yard where men were constantly at work as everybody knew. He faced from an approaching engine which he did not see, but might have seen had his time been spent watching for reckless men instead of devoting it to his task. Nothing interrupted the view of the engineer who, on level ground, without once looking to see where he was going or whether men were where he knew they were likely to be, ran this man down and killed him. That was manslaughter; yet the court said, p. 186: It is not sufficient that means of knowledge were available and not used." No sane man would argue for the justice of this decision. Common sense revolts at the charge that this man committed crime in thus suffering death, and humanity can only view with horror the sight of the widow and children driven from a court of justice because, as the court proclaimed, they claimed only through the iniquity of the husband and father. "There cannot be neglect without the existence of a corresponding duty." That engine driver owed the decedent the duty of moving his ponderous and dangerous agent with due caution with respect to the decedent. Did the decedent owe him the duty to watch against his law forbidden course? Suppose it to be property in peril. It does not concern the defendant that the plaintiff is careless. Such conduct confers no warrant upon another to injure it. The owner owes duty to guard it neither to the invader nor to another. We have seen that the defendant is liable because and only because he has exerted force beyond the limits that are his own. To say that the defendant, who has confined himself within his own boundaries, is a joint tort feasor because he has failed to exercise ordinary caution - which would have enabled him to resist or to evade the unlawful force of his aggressor, is to proclaim nonsense as logic. But, the law is not always so nice in respect to the claims of wrongdoers. "He who meets his assailant with excessive violence is answerable to him in damages for the excess." (Bishop, NonContract Law, sec. 200.) He is answerable in the very court that turns the negligent plaintiff from its doors because of his "unclean hands." Indeed, in such case, each party may have his action; the assailed, for the assault, the assailant, for the excessive beating. The thug may recover damages for the beating he intended for the assailed whose prowess he underestimated; but the inexperienced woman from the country run down by a reckless driver is whipped out of court as having "unclean hands" in that she did not exercise the care and caution of an ordinarily prudent man. (Woolf v. Beard, 8 C. & P. 373 [Q. B. May 25, 1838]; Webb's Pollock, p. 540.) Had Keefe, without provocation and in wantonness assailed the engineer, who, carried away by his inflamed passions, slew him when death was unnecessary for self-defense, the Iowa court would have seen no evil taint in Keefe preventing justice to his widow. The doctrine of these writers is what Sir Fred. Pollock calls the "penal theory" (Pollock on Torts, p. 570), of which he says: "It rather suggests as the ground of the doctrine that a man who does not take ordinary care for his own safety is to be in a manner punished for his own carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one nor supported by modern authority, and it is already distinctly rejected by writers of no small weight." So Campbell, 180; Horace Smith, 226; Wharton, sec. 300 et seq.; Beach, secs. 12, 13; Shearman & Redfield, sec. 63 (5th Ed.). Recognizing the untenability of the penal theory yet determined to maintain the doctrine, it was made by some to rest upon the maxim, “l'olenti non fit injuria." But the assumption that one negligent willed the destruction of his life or property was even more preposterous than the penal theory. Negligence, by its very definition, necessarily implies absence of thought and purpose. In an assemblage other than lawyers seeking a pretext for this rule, no man would be listened to while arguing that one at a railroad crossing, allowing his attention to be diverted by a passing parade, and, in consequence, run down and killed, consented to his death. In Railway Co. v. Smith (98 Ind. 42) it was held that one charging negligence could not, under that pleading, prove a wilful injury. Of this last contention, Wharton (Law of Negligence, sec. 132) says: "Negligence, to state this in other words, necessarily excludes a condition of mind which is capable either of designing an injury to another or of agreeing that an injury should be received from another. To contributory negligence, therefore, the maxim l'olenti non fit injuria' does not apply, because a negligent person exercises no will at all. The moment he wills to do the injury, or to combine in doing the injuria, then he ceases to be negligent, and the case becomes one of malice or fraud. Recognizing thus clearly the difference between the nega tive mental state producing negligence and the affirmative and active mental condition expressed by assent or wilfulness, he nevertheless undertakes (sec. 300) to make the doctrine of contributory negligence rest upon the voluntary causal act of the plaintiff." The true ground for the doctrine is that, by the interposition of the plaintiff's independent will, the causal connection between the defendant's negligence and the injury is broken." The objection that negligence precludes volition is answered by the statement that the law imputes wilfulness to the act of responsible beings, exonerating from the rule idiots, persons terrified and those acting in justifiable ignorance. But it is as clear as any proposition can be made that the unanswerable argument against the maxim applies with equal force to this. Yet it is at this hour the rule prevailing in several courts. A number of cases supported the rule by charging the defendant only when his negligence had been the sole cause of the injury a proposition "plainly not true." (Shear. & Red. sec. 63, 5th Ed.; and see Beach, sec. 14.) Certain other tribunals and some writers hold that, while the defendant has done wrong, the real reason for denying the plaintiff compensation is the inefficiency of the courts. "It is that the law cannot measure how much the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover it might be that he would obtain from the other party compensation for his own misconduct." (Heil v. Glanding, 42 Pa. St. 493, 499; 82 Am. Dec. 537.) Observe the fear controlling this court of justice least the sufferer from another's conceded wrong "might obtain from the other party compensation for his own misconduct." Imagine the elevation in public esteem the court would get after such announcement in the Keefe case. In an earlier case that court had said (Little Schuylkill Nav. Co. v. Norton, 24 Pa. St. 465; 64 Am. Dec. 672): "The law has no scales to determine in such cases whose wrong doing weighed most in the compound that occasioned the mischief." Said Sanderson, J., in Needham v. Railroad (37 Cal. 409. | 419): “The reason of this rule is that, both parties being at fault, there can be no apportionment of the damages, and not that the negligence of the plaintiff justifies or excuses the negligence of the defendant, which would seem to be the true reason in the estimation of the New York courts. The law does not justify or excuse the negligence of the defendant. It would, notwithstanding the negligence of the plaintiff, hold the defendant responsible if it could. It merely allows him to escape judgment because, from the nature of the case, it is unable to ascertain what share of the damages is due to his negligence. He is both legally and morally to blame, but there is no standard by which the law can measure the consequences of his fault, and therefore only he is allowed to go free of judgment. The impossibility of ascertaining in what degree his negligence contributed to the injury being, then, the sole ground of his exemption from liability, it follows that such exemption cannot be allowed where such impossibility does not exist; or, in other words, the general rule that a plaintiff who is himself at fault cannot recover is limited by the reason upon which it is founded." And Shear. & Red. (sec. 63. 5th Ed.) say: "The fact that courts of admiralty have always ordered compensation in cases of contributory negligence, apportioning the damages as they deemed to be just under the circumstances, and that this course has been universally acquiesced in and has given general satisfaction, affords strong proof that the stern rule of common law is not founded on any immutable principle, but is simply the result of judicial unwillingness to trust juries to apportion damages between parties in fault, a task for which very iew juries are competent. We think that the Supreme Court of California has stated the exact truth in holding that the reason of the rule is simply the impossibility in most cases of equitably apportioning the damages between the parties in a common-law action, and that where this impossibility does not exist the rule itself does not apply." The American and English Enc. of Law (2d Ed. vol. 7, p. 372) announces this as, of course, the reason for the rule, and the only reason for it. But the most eminent authorities advise that the rule is not merely a logical deduction, but is founded in public utility. The ultimate justification of the rule is in reasons of policy, viz., the desire to prevent accidents by inducing each member of the community to act up to the standard oi due care set by the law. If he does not he is deprived of the assistance of the law." (Pollock on Torts, p. 570; so Beach, secs. 12, 13.) It was a sound public policy that left Keefe's children and widow without bread that they and others "might be induced to act up to the standard of due care.” To the unlearned it would seem that the engine driver needed education at least as much, and that compelling compensation would induce due care from those reckless of it quite as effectually as was done by exonerating the reckless wrongdoer. SECOND. This rule, the principle of which it is so difficult to ascertain, the courts have undertaken to extend by the doctrine of imputed negligence. For what sound reason? Let us not lose sight of the sole ground upon which the defendant is charged. "The rule is that, in order to maintain an action for a tort, the act or omission complained of must be legally wrongful; it must prejudicially affect another in some legal right. The fact that it has or will result to another's injury and damage is not enough." (Wood's note, vol. 1, p. 5; Addison on Torts.) That the rule rests upon no immutable principle nor, indeed, upon any in some of its extensions may be conceded, but the impossibility to find a just award for the injury by the defendant inflicted is obviously not true. We have seen that when the plaintiff is hurt in outrageous and defiant breach of another's rights and of his own socia! duty, the law finds no difficulty in producing scales to determine" the weight of each wrongdoer's act in the compound that occasioned the mischief." Then, in cases where the defendant's negligence caused a disease, aggravated a prior disease, or led in immediate sequence to disease the defendant must respond in damages for such part of the diseased condition as his negligence caused." (Am. and Eng. Enc. of Law, 2d Ed., vol. 7, p. 388.) "When he was guilty of no negligence contributing to the injury, negligence upon his part after the injury, by which it is aggravated. will not prevent him from recovering damages for so much of the injury as the original wrongdoer caused by his negligence. In such cases it seems that the damages may be apportioned or allowance made by the jury for that portion of the injury due to the plaintiff's fault." (Id., pp. 387–388.) | but not to support the artificial substitute for the Professions of judicial imbecility after statements soil, i. e.. the building. But much less, we are like that resemble the talk of a mad-house. told, is required to defeat a plaintiff than to charge "Why, in such a case, the damages should not be a defendant. The former must not only discharge apportioned. I do not profess to understand." said to the latter all legal duties, but must not in the the learned Lindley, L. J., in The Bernina, 12 P. D. | slightest degree fall below the standard of care Thurston v. Hancock (12 Mass. 220) illustrates this. There plaintiff and defendant were adjoining lot owners. On his lot the plaintiff built a house extending near to the common line, taking precaution to sink the foundation to an unusual depth. Thereafter defendant excavated his lot to the depth of thirty-two feet, by reason whereof the walls of plaintiff's house cracked and he had to take it down. It was not claimed that the defendant made the excavation with view to use or improvement of the lot by building or otherwise. The motive was immaterial, for he had the right to excavate upon his own land so long as he did not disturb the soil of the neighbor. Defendant's land owed the duty of support to that adjoining to the extent only of preserving the soil intact. |