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Such a temporary and unavoidable use of private property, must be regarded as one of those incidental burdens to which all property in a civilized community is subject. . . . The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls within that maxim, which makes public convenience and necessity paramount.

From what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in necessity, it must be limited by that necessity; cessante ratione, cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impassable obstructions in the highway. . . . In the case at bar, this question was wholly withdrawn from the consideration of the jury, by the ruling of the court. It will therefore be necessary to send the case to a new trial in the Court of Common Pleas. Exceptions sustained.

787. SPADE v. LYNN & BOSTON RAILROAD COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1899

172 Mass. 488, 52 N. E. 747

TORT, for personal injuries sustained by the plaintiff, while a passenger on the defendant's car, through the alleged negligence of the defendant. After the former decision, the case was tried in the Superior Court, before DEWEY, J.

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

C. K. Cobb, for the defendant.

S. L. Whipple, (W. R. Sears with him,) for the plaintiff.

HOLMES, J. This is an action for personal injuries which already has been before the Court. 168 Mass. 285 [ante, No. 36]. At the second trial the evidence was that the defendant's conductor in removing a drunken man from the car jostled another drunken man who was standing in front of the plaintiff, and threw him upon her. The fall upon her seems to have been a trifling matter, taken by itself, but the fright caused by that and the rest of the occurrences in the car resulted in physical injury. The case comes up again upon exceptions. The judge was asked to direct a verdict for the defendant. We find some difficulty in seeing upon what ground the jury were warranted in finding for the plaintiff. So far as appears, the conductor was acting rightly in putting the drunken man off the car. As against the plaintiff, he

was doing one of the things which she had to contemplate as liable to happen when she got into the car. We all know that, if people are standing in the passageway of a street car, you cannot remove a man forcibly through the passageway without more or less contact. If the fall upon the plaintiff was the necessary consequence of a lawful and reasonable act, then it was one of the risks which she assumed when she took her passage.

It is a question which deserves more discussion than it has received, whether a man is answerable for an injury inflicted upon an innocent stranger knowingly, or with sufficient notice of the danger, if the injury is an unavoidable incident of lawful self-protection. It might be said, and it has been held, when it is a question of paying damages, that a man cannot shift his misfortunes to his neighbor's shoulders. Gilbert v. Stone, Aleyn, 35; s. c. Style,,72 [ante, No. 780]. Scott v. Shepherd, 2 W. Bl. 892, 896 [ante, No. 782]. Cooley, Torts, 115. See McLeod v. Jones, 105 Mass. 403, 405; Miller v. Horton, 152 Mass. 540, 547 [ante, No. 777]; Pierce v. Cunard Steamship Co., 153 Mass. 87, 90; Whalley v. Lancashire & Yorkshire Railway, 13 Q. B. D. 131. And compare the rules as to duress in contracts and conveyances. Fairbanks v. Snow, 145 Mass. 153, 155. On the other hand, the contrary has been intimated in a case of shooting in self-defence, the injury to the third person being treated on the footing of accident. Morris v. Platt, 32 Conn. 75, 84. See Bacon's Maxims, Reg. V. & VI.; Add. Torts, (6th ed.) 380, 383. And the right to pull down a house when the destruction is necessary to stop a fire, as it usually is stated, looks the same way. See Taylor v. Plymouth, 8 Met. 462, 465 [ante, No..771]; American Print Works v. Lawrence, 3 Zabr. 590, 613. The alleged immunity for the necessary destruction of a building suggests that perhaps the question cannot be answered in general terms, and that one possible distinction may be found where the parties have a common interest, even though the act done in furtherance of it may cause more harm than good to the plaintiff. Perhaps it would be unsafe to find any countenance to such a distinction in decisions as to the rights of landowners or officials in diking against water when it appears as a common enemy. The King v. Sewer Commissioners, 8 B. & C. 355. Nield v. London & Northwestern Railway, L. R. 10 Ex. 4. Compare Whalley v. Lancashire & Yorkshire Railway, 13 Q. B. D. 131. But when we go a step further, and take a case like the present, where all parties concerned are in a conveyance, and to maintain order and keep the car clear of obnoxious persons is the defendant's right, and its duty to the plaintiff and the other passengers, no passenger can complain of any consequence which the performance of that duty necessarily entails. We assume for present purposes that carriers of passengers owe the same degree of care in respect of such matters as they owe in respect of the construction and management of their vehicles; but if that care is shown, probably the injury must be regarded as an inevitable acci

dent. As to whether there was any negligence in the manner of expelling the drunken man, or otherwise, we will go no further than to say that it has not been pointed out to us. We need not decide the question, as there must be a new trial for another reason.

Exceptions sustained.

788. M'KEESPORT SAWMILL CO. v. PENNSYLVANIA

COMPANY

UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF
PENNSYLVANIA. 1903

RULE for New Trial.

122 Fed. 184

Alex A. Patterson, opposed.

W. S. Dalzell, for the rule. ARCHBALD, District Judge. This is an action of trover. [A coal barge of the plaintiff's, having slipped its moorings, floated down a stream at a time of high water, without any person in charge, and became lodged against the false work of the defendant's railroad bridge, catching and holding back a large quantity of slush ice, and endangering the safety of the bridge. The defendants are charged with having converted it, because they found it necessary to destroy it in order to dislodge it from the position where it lay, bearing upon and endangering the false work of their bridge.] . . . What we are particularly concerned with is whether the jury were properly instructed as to the rights and duties of the defendants in the premises, and upon an examination of the charge, I regret to say that I do not think they were. The coal barge, for loss of which the action is brought, having slipped its moorings in some way not disclosed, and being without anyone to guide it, was carried down against the fender and false work of the defendant's bridge, where it caught and held a great body of slush ice, becoming a peril, which it was not only the right, but the duty, of the defendant railroad to remove. In doing so the company were not required to particularly concern themselves with the interests of the unknown owner, nor to see whether, in dislodging or breaking it up (which, as a last resort, they found necessary), either it or its contents could not, by some possibility, be saved. On the contrary, had they seen the barge coming down the stream on the flood, and been able to anticipate its course, they would have been entitled to ward it off from their structure, and let it go where it would, having the right, as every one has, to protect themselves against any such menace of their property. What they did after the barge lodged is to be judged of in the same way. There is no suggestion that it was wantonly destroyed, and the evidence shows that it was cut to pieces only after other means had been tried and failed.

The only testimony that anything else could have been done with it is that of Capt. Hulings, who says that by breaking up the ice in shore with a steamboat, and then attaching a line, the barge could have been pulled over towards the Allegheny side, and so straightened out, and loosened from its position. The jury seem to have been impressed with the idea that this course was practicable, and ought to have been pursued, and had the question been submitted to them with proper instructions, we might have been compelled to abide by the result. But they were told that the defendant company were called upon to do as little injury as possible to the barge, and that, if they did not, they were liable. This demanded of them a greater degree of care than the law imposes. It involved in fact an effort to save the barge, which even the owners themselves did not see fit to exercise; for, although it lay lodged above the bridge for several days, and was discovered by Retzbach, who had charge of the plaintiff's boats, to be in that position the day after it broke loose, yet nothing whatever was done to rescue it, or get it out of the way. Having allowed the defendants to labor with it as best they could, they now seek to hold them liable for the full value of the boat and its contents. But the railroad company, in trying to get rid of the menace to their bridge, were seeking to save themselves, and had the right to look first and principally to their own concerns. The barge was a derelict, brought down upon them by the high water, and whether it got loose through the neglect of the owner to properly moor it or not is not material. It was astray, without a master, and thereby became a flcating nuisance, which they were entitled to ward off or get out of the way as best they could. Had there been some one in responsible charge of it, it is possible the case might have been different. But, in any event, while they could not wantonly or unnecessarily destroy it, they were not required to save it for an unknown owner, or have particular regard to interests, which he himself took no pains to assert. To hold, therefore, that care should have been taken in the removal to do the least possible injury, was going farther than was warranted. The defendants were authorized to take such steps as were reasonably necessary to free themselves from the danger, which is quite different. The one is looking at it from the side of the one party, and the other of the other; and it is that of the party menaced that is to govern. This is the rule that should have been given to the jury, and we must assume that, if it had been, it might have produced a different result. It is the one, also, which is sustained by the authorities. . . . Undoubtedly, this is a matter for the jury under proper instructions, but, not being satisfied with those that were given, the rule for a new trial is made absolute.

789. VINCENT v. LAKE ERIE TRANSPORTATION

COMPANY

SUPREME COURT OF MINNESOTA. 1910

109 Minn. 456, 124 N. W. 221

ACTION in the District Court for St. Louis County to recover $1,200 for damages to plaintiff's wharf, caused by defendant negligently keeping its vessel tied to it. The defendant in its answer alleged that a portion of the cargo was consigned to plaintiff's dock and on November 27, 1905, its vessel was placed alongside at the place and in the manner designated by plaintiffs and the discharge of cargo continued until ten o'clock that night, that by the time the discharge of cargo was completed the wind had attained so great a velocity the master and crew were powerless to move the vessel. The case was tried before ENSIGN, J., who denied the defendant's motion to direct a verdict in its favor, and a jury which rendered a verdict in favor of plaintiffs for $500. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed. H. R. Spencer, for appellant.

Alford & Hunt, for respondents.

O. BRIEN, J. The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff's dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. . . . After the discharge of the cargo the Reynolds signalled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift away from it. . . . The record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship. . . . The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and

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