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one is injured in attempting to pass them, neither of the culpable parties can excuse himself by showing the wrong of the other, for the injury is a natural and proximate result of his own act under the then existing circumstances, and to excuse either would be to deny all remedy in the case of plain and palpable injury. But if the acts or neglects were not concurrent in time, and the party last in fault was chargeable with some duty to the other which, if performed, would have prevented the injury, the law will attribute to his culpable conduct the injurious consequence, and refuse to look beyond it. For illustration the case may be instanced of the escape of gas into a dwelling in consequence of the negligence of the gas company, and the subsequent ignition of the gas through the negligence of a tenant. "If the tenant, upon discovering the presence of gas in large quantity in the house, neglected to give notice to the agents or servants of the defendant, or to take reasonable precautions to remove or exclude the gas, and recklessly brought the flame of a candle in contact with it, thus bringing about injurious effects which would not have followed but for such reckless or negligent conduct on his part, the defendant ought not to be held responsible for those results. Whatever of care was requisite for the protection of the premises under the circumstances was due from the occupant. The defendant, as well as the plaintiff, had a [*80] right to expect and require it of him. The measure of duty and the extent of liability of the defendant in respect to the property exposed to injury are not affected by the consideration whether the occupant who has charge of it is in fact owner in fee or tenant for years or at will. If the intervening misconduct of the occupant produced the explosion which was the immediate cause of the injury to the building, the plaintiff cannot charge the legal responsibility for that result upon the original negligent act or omission of the defendant."

Accidental Injuries. For a purely accidental occurrence, caus

plaintiff was not chargeable with the boy's negligence; that defendant's negligence having rendered the injury possible and probable was the proximate cause thereof. Harriman v. Pittsburgh, etc., Co., 12 N. E. Rep. 451 (Ohio).

'Citing Hunt v. Lowell Gaslight Co, 1 Allen, 343; Sherman v. Fall River Iron Works, 2 Allen, 524.

WILLS, J., in Bartlett v. Boston Gaslight Co., 117 Mass. 533, 538.

ing damage without the fault of the person to whom it is attributable, no action will lie, for though there is damage the thing amiss-the injuria-is wanting.'

1 Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 1 Ld. Ray. 38; Lloyd v. Ogleby, 5 C. B. (N. s.) 667; Cotton v. Wood, 8 C. B. (N.s.) 566; Hammack

. White, 11 C. B. (N. s.) 588; Alderson . Waistell, 1 C. & K. 357; Holmes v. Mather, L. R. 10 Exch. 261; Vincent v. Stenehour, 7 Vt. 62; Dygert v. Bradley, 8 Wend. 469; Losee v. Buchanan, 51 N. Y. 476; S. C. 10 Am. Rep. 623; Clark v. Foot, 8 Johns. 421; Sheldon v. Sherman, 42 N. Y. 484; S. C.(Am. Rep. 569; Newcomb v. Van Zile, 34 Hun, 275; Wilson v. Rockland Manuf. Co., 2 Harr. 67; Spencer v. Campbell, 9 W. & S. 32; Boynton v. Rees, 9 Pick, 527; Rockwood v. Wilson, 11 Cush. 221; Brown v. Kendall, 6 Cush. 292; Gault

. Hames, 20 Md. 297; Robinson v. Grand Trunk R. R. Co., 32 Mich. 322; Lewis v. Flint, etc., Ry. Co., 54 Mich. 55; Schroeder v. Mich. Car Co., 56 Mich. 132; Toledo, etc., R. R. Co. v. Daniels, 21 Ind. 162; Indianapolis, etc., R. R. Co. v. Truitt, 24 Ind. 162; P. C. & S. R. R. Co. v. Smith, 26 Ohio (N. s.) 124; Express Co. v. Smith, 33 Ohio St. 511; Burton v. Davis, 15 La. Ann. 448; Brown v. Collins, 53 N. H. 442; S. C. 16 Am. Rep. 372; Hanlon v. Ingram, 3 Clark (Iowa), 81; Morris v. Platt, 32 Conn. 75; Strouse . Whittlesey, 41 Conn. 559; Chicago, etc., R. R. Co. v. Jacobs, 63 Ill. 178; Toledo, etc., R. R. Co. v. Jones, 76. Ill. 311; Lincoln, etc., Co. v. McNally, 15 Ill. App. 181. Damage from extraordinary floods falls under this rule. Brown. Susquehanna Boom Co., 109 Pa. St. 57; Thatcher v. Baker, 15 id 22. See Viterbo v. Friedlander, 120 U. S., 707. Encamping and hunting in a wilderness district is not such an illegal and mischevious act as will

render the person responsible for all injury that may result to others regardless of diligence, care, or prudence on his part. Bizzell v. Booker, 16 Ark. 308. Where a party, in selfdefense, fired a pistol at his assailant and accidentally shot a third party, he was held not liable for the injury done. Morris v. Platt, 32 Conn. 75. See, to the same effect, Paxton v. Boyer, 67 Ill. 132; S. C. 16 Am. Rep. 615. Where in the use of a steam engine without negligence it explodes and causes injury to others, the owner is not liable therefor. Losee v. Buchanan, 51 N. Y. 746; S. C. 10 Am.. Rep. 623; Marshall v. Welwood, 38 N. J. 339: S. C. 20 Am. Rep. 394. So as to accidents from machinery, where their liability to happen is proved only by their actual happening. Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Id. 274. So as to injuries from the use of dyestuff supposed harmless. Gould . Slater Woolen Co., 17 N. E. Rep 531 (Mass). A mule caught its foot in a hole in 8 railroad track 80 small that no one could have foreseen such result Held, no liability. Nelson v. Chicago, etc., Ry. Co., 30 Minn. 74. So where a workman was painting by lamplight the inside of a tank with an approved and long used paint, bought ready for use, and the benzine in the paint caused an explosion. Allison Mufg Co. v. McCormick, 12 Atl. Rep. 273 (Pa). From some unexplained cause a telegraph wire across a track sagged, and hitting a brakeman on top of a car broke, at the same time becoming fastened to the car brake. The end caught a man engaged in business

*Damage from the Lawful Exercise of Rights. It is [*81] damnum absque injuria also if through the lawful and

proper exercise by one man of his own rights a damage results to another, even though he might have anticipated the result and avoided it. That which it is right and lawful for one man to do cannot furnish the foundation for an action in favor of another.'

near the depot, and the wire being drawn along by the moving train the man was killed. Held, to be an accident. "Negligence," says MITCHELL, C. J., "is not to be presumed upon the fact of an occurrence like that involved in the present case, the statemeat of which suggests its anomalous, exceptional and extraordinary character." Wabash, etc., Ry Co. v. Locke, 14 N. E. Rep. 391, (Ind.) An accident may be defined as an event happening unexpectedly and without fault: if there is any fault there is liability. As where one drives against another by getting on the wrong side of the road in a dark night. Leame v. Bray, 3 East. 593. Or by pulling the wrong rein by mistake, Wakeman v. Robinson, 1 Bing. 213. See Shawhan t. Clarke, 24 La. Ann. 390; W. U. Tel Co. v. Quinn, 56 Ill. 319; Sullivan v. Scripture, 3 Allen. 564.

'Aldred's Case, 9 Co. 58, b.; Acton . Blundell, 12 M. & W. 350; Chasemore. Richards, 2 H. & N. 168; S. C. 7 H. L. Cas. 749; New River Co. v. Johnson, 2 El. & El. 435; Charles River Bridge . Warren Bridge, 7 Pick, 344; S. C. in Error, 11 Pet. 420; Roath . Driscoll, 20 Conn. 533; Chatfield v. Wilson, 28 Vt. 49; Frazier v. Brown, 12 Ohio, (N.S.) 294; Wheatley . Baugh, 25 Penn. St. 528.

The rule applies to the case of a landlord, where his tenant's employer has made it a condition of employment that he shall not live in the landlord's house. Heywood v. Tillson, 75 Me. 225. So as to the use of streams and water. De Baun v. Bean, 29 Hun, 236; Bullard v. Victory Mfg.

Co., 77 N. Y. 525; Hoxsie v. Hoxsie, 38 Mich. 77; Railroad Co. v. Carr, 38 Ohio St. 448; Chesley v. King, 74 Me. 164. A man bought land with special reference to a brook of pure water running through it. Afterward a coal mine was opened higher up the stream which afforded the natural drainage for the locality. The water pumped from the mine ran into the stream and polluted it. The Court first held the pollution actionable, Sanderson v. Penn. Coal Co., 86 Pa. St., 401, but afterwards decided it to be damnum absque injuria. Penn. Coal Co. v. Sanderson, 113 Pa. St. 126.

The exercise of the right to abandon his mine by one of two adjoining mine owners does not give the other a right of action if by reason of such abandonment water, which otherwise would have been pumped out, accumulates and flows into the worked mine. Nat. Copper Co. v. Minnesota Min. Co., 57 Mich. 83; Williams v. Pomeroy Coal Co., 37 Ohio St. 583. So, if by working out, the surface sinks and rain, which had before flowed off, falls into the old workings and percolates into an adjoining mine. Wilson v. Waddell, L. R. 2 App. Cas. 95; Lord v. Carbon Iron Co., 42 N. J. Eq. 157. So where land between plaintiff's and defendant's had been worked out and by defendant's excavating his, such intervening land fell and caused plaintiff's to subside. Birmingham v. Allen, L. R., 6 Ch. D. 284.

From a lawful use of a street, no action arises. Grand Rapids, etc., R.

Nor can the absence of commendable motive on the part of the party exercising his rights be the legal substitute or equivalent for the thing amiss which is one of the necessary elements of a wrong. "An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent."

Crimes and Torts Distinguished. It was observed in a previous chapter that the same act may constitute a public offense and also a private injury; or, in other words, may be both a crime and a tort. But whether or not it shall have this two-fold character can never be determined by an analysis of the moral qualities, and a determination of the presence or absence of evil intent. We must look beyond these, and see whether the act comes within the definition of a crime, and also within that of a private injury, and if it does, the fact that it is the one will not prevent its being the other also. Certain acts or omissions are made public offenses by the common law or by statute, either because their inherent qualities and necessary tendencies make them prejudicial to organized society, or because it is believed that the evils likely to flow from them will be so serious that the general good will be subserved by forbidding them; and penalties are attached to them, which are imposed on public grounds. These according to their grade, are crimes or misdemeanors, or they are simply things prohibited under penalty. But [*82] where the *same wrongful acts cause damage to private individuals, they come directly within the definition of

R. Co. v. Heisel, 38 Mich. 62; Grand Rapids St. Ry. Case, 48 Mich. 433; see Garrett v. Janes, 65 Md. 260. So as to obstruction of navigation in rebuilding a lawful bridge. Hamilton . Vicksburg, etc., R. R. Co., 119 U. S. 280; see Abbott v. Kansas, etc., Ry. Co., 83 Mo. 271. Otherwise if the act is not necessary to the public improvement, authorized by law, in the course of which it is done. Hackstack v. Keshena Impr. Co., 66 Wis. 439. Inconvenience suffered in obeying police regulation of the State is wrong without injury. Flint, etc., Ry. Co. v. Detroit, etc., R. R. Co., 31 N. W. Rep. 281 (Mich).

But if by the careful washing of an upper floor, water is made to run into the room below, the upper tenant is liable, provided the lower tenant is not chargeable with the duty of repairing the floor. Patton v. McCants, 6 S. E. Rep. 849 (S. C).

'Parke B. Stevenson v. Newnham, 13 C. B. 235. See Floyd v. Baker, 12 Co. 23; Stowball o. Ansell, Comb. 11; Taylor . Henniker, 12 Ad. & El. 488; Phelps. Nowlen, 72 N. Y. 39; Kiff v. Youmans, 86 N. Y. 324. For further discussion of this subject see 82, Chapter XXII.

torts, and are such. If one man strike another in anger, the public peace is broken, and the man assaulted is injured; and there is thus a public wrong and a private wrong. Punishing one does not redress the other, nor does forgiving the one preclude legal proceedings to punish or obtain compensation for the other.

Many attempts have been made to draw a clear distinction between a tort and a crime, but they have not always thrown light upon the subject. Thus Blackstone says: "The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: That private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity. As if I detain a field from a man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land; but treason, murder and robbery are properly ranked among crimes; since, beside the injury done to individuals, they strike at the very being of society, which cannot possibly subsist where actions of this sort are suffered to escape with impunity."" Again, it is said by Lord MANSFIELD: "The offense that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or many of his customers, or uses them in the general course of his dealings. So, if a man defrauds another under false tokens; for these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; for ordinary care and caution is no guard against this." And still another judge has said: "All offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable."

Now it is not an immaterial matter to the public that one man *takes from another his land, whether it be done by [*83] force or by stealth; and if it were so, the law might well

14 Bl. Com. 5.

• LAWRENCE, J., in King v. Hig.

* Rex v. Wheatly, Burr. 1125, 1127. gins, 2 East, 5, 20.

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