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on one ground, that the plaintiff was not a passenger, and hence there was no breach of contract of carriage. The discussion suggests the usual current of thought on this subject. O'Brien, C. J., quotes the language of Mr. Justice Buller in Thellusson v. Woodford, 4 Ves. Jr. 335, in reference to the allegation that a child in his mother's womb was a nonentity:

"Let us see what this nonentity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be even executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction, and he may have a guardian. Some other cases put this beyond all doubt. In Wallis v. Hodson, 2 Atk. 117, Lord Hardwicke says: "The principal reason I go upon in the question is that the plaintiff was en ventre sa mere at the time of her brother's death, and consequently a person in rerum natura, so that, by the rules of the common and civil law, she was to all intents and purposes a child as much as if born in the father's lifetime." In the same case Lord Hardwicke takes notice that the civil law confines the rules to cases where it is for the benefit of the child to be considered as born; but, notwithstanding, he states the rule to be that such child is to be considered living to all intents and purposes.' And the plaintiff's counsel also rely upon a passage lower down (at the close of page 322) in Mr. Justice Buller's judgment, where he states 'In Doe v. Clarke, 2 H. Bl. 399, the words "that whenever such consideration would be for his benefit, a child en ventre sa mere shall be considered actually born," were used by me because I found them in the book from whence the passage was taken. Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons.'

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O'Brien, C. J., also discusses the case of Rex v. Senior, 1 Moody, C. C. 346, where a doctor attending on childbirth was held to have been found guilty properly of manslaughter for inflicting through culpable ignorance and want of skill a wound on the child during and before its birth, whereby it died. Johnson, J., discusses ancient rules, practice, and instances decisions to the disadvantage of the plaintiff, even to indicating dissatisfaction with the reversal by the House of Lords of the decision in Long v. Reeve, 3 Lev. 408, to the effect that in a devise for life, remainder to his first and other sons in tail, a child born after the death of the life tenant was not in esse on the determination of the particular estate by his father's death. So far was it deemed helpful to go to aid the argument that at the time of the accident, "as Lord Coke says, the plaintiff was then pars viscerum matris," and the learned judge adds:

"We have not been referred to any authority or principle to show that a legal duty has ever been held to arise towards that which is not in esse in fact and has only a fictitious existence in law, so as to render a negligent act a breach of that duty."

It is to this conclusion that an unborn child is not in existence so as to be entitled to the protection of his person as well as his property. that I dissent. It is not helpful to characterize its existence as fictitious as to property rights. The rights are accorded to it. The indisputable fact is that one is answerable to the criminal law for killing an unborn child who to that end is regarded as in esse, and the further fact is that the unborn child, so far as the property interests are concerned, is regarded as an entity, a human being with the remedies

usually accorded to an owner. But the argument then proceeds that one must respect the rights of ownership, and, so far as a civil remedy is concerned, disregard the safety of the owner. In such argument there is not true sense of proportion in the protection of rights. The greater is denied; the one lesser and dependent on the very existence of a person in esse and entitled to protection is respected. In Walker v. Great Northern Railway Company, O'Brien, J., says:

"The pity of it is as novel as the case-that an innocent infant comes into the world with the cruel seal upon it of another's fault, and has to bear a burthen of infirmity and ignominy throughout the whole passage of life.”

And he adds:

"I would not myself see any injustice in the abstract in such an action being held to lie, or in the risks of a carrier being extended to the necessary incidents of nature," although he considered "on what a boundless sea of speculation in evidence this new idea would launch us."

In my view, justice should not be turned aside and wrongs go without remedies because of apprehension of what may happen in jurisprudence if it be decided that an unborn child has some rights of the person. But here is reached the critical stage of the inquiry. This is an action for negligence, for violation of defendant's duty as a carrier, and defendant cannot be judged as a trespasser. Negligence is culpable failure to observe a duty owed by one to another in a particular relation, and remedy is allowed for injury therefor. What duty did the defendant as a carrier owe the unborn child? The child in its distinct entity was not a passenger, and the company owed it as a separate person no duty in the matter of safe carriage. Had it, born, been carried in its mother's arms, it would have been a gratuitous passenger, but the carrier's duty towards it would not have been thereby lessened. The learned counsel for the plaintiff suggests that the duty would attach had the child been concealed in a garment. Such condition does not usually escape the observation of the carrier's servants exercising ordinary attention, and the case of mothers concealing their infants from the expectable knowledge of carriers might, under some circumstances, excuse some act of the carrier whereby it was injured. But it is not the duty of a carrier to scrutinize its passengers for the detection of unborn children, to the end that they, although latent, may be regarded as passengers. It undertakes to carry as passengers the born, and not the unborn. It carries by compulsion those visibly offering themselves. So the mother presents herself and her living children, and the carrier is bound by the law of the realm to receive and to carry them. Its duty begins with receiving and ends with discharging them, and due care is required. The plaintiff stood in no such relation to the carrier as to earn such obligation on its part, and liability to respond for injury for the negligent carriage and discharge of the mother was coincident with the limits of its duty to her. The obligation arises from implied convention with the state that the carrier shall transport persons with due care, and the remedy is given to the one injured by the breach. The obligation is the same whether the action is in form based on breach of contract or of duty to carry.

Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 17 Am. Rep. 221. Thus if, for injury to a woman by a car on the street whereby her unborn child is deformed, a railway company were liable to the child after birth in its action, yet it would not be liable to the child for mere negligence in the carriage of the mother, as it would owe its duty as a carrier to the mother, and not to the child. Such was the conclusion in Walker v. Great Northern R. Co. (1891) 28 Irish Law Reports, Q. B. & Exch. Div. 69, which has been noticed. Much broader was the decision in Dietrich v. Northampton (1884) 138 Mass. 14, 52 Am. Rep. 242, where a premature birth was caused by the mother slipping by reason of a defect in the defendant's highway, whereupon the child, too little advanced in fœtal life, lived a few minutes, and it was held that an action for the death in behalf of the next of kin could not be maintained by its representatives. In Allaire v. St. Luke's Hospital (1900) 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176, affirming 76 Ill. App. 441, the action was as alleged upon the defendant's contract to deliver the child without harm, whereas the mother was negligently hurt during carriage by defendant's elevator to the obstetrical part of the hospital, so that at its birth it had resultant injuries. It was decided that the action could not be maintained, but Boggs, J., dissented in an opinion expressing independent and logical thought, although his views would preclude recovery in the case at bar.

The judgment should be affirmed, with costs. All concur.


(Supreme Court, Appellate Division, Second Department. January 10, 1913.) Appeal from Trial Term, Kings County.

Action by Arthur A. Nugent against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

William E. Butler, of New York City, for appellant.

D. A. Marsh, of Brooklyn, for respondent.

PER CURIAM. Judgment unanimously affirmed, with costs on the author. ity of Girard Nugent v. Brooklyn Heights Railroad Co., 139 N. Y. Supp. 367, decided herewith.


(Supreme Court, Appellate Division, Second Department. January 10, 1913.) 1. MUNICIPAL CORPORATIONS (§ 658*)-STREETS-RIGHTS OF MUNICIPALITY. The only interest of a municipal corporation in its streets is that of the public in the highways, and it has no interest in protecting the rights of abutting owners of the fee against interference with the highway by third persons without the consent of such owners.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1430 Dec. Dig. § 658.*]


Transportation Corporations Law (Consol. Laws 1909, c. 63) § 60, provides for the incorporation of gas companies and for naming the towns, villages, cities, and counties in which their operation is to be carried on. Section 61 provides that, if incorporated to supply gas for light, they shall have power to manufacture gas and to acquire natural gas by purchase or otherwise, and to sell and furnish gas in such quantities as may be required in each city, town, and village named in the certificate of incorporation for lighting the streets and public or private places, or for other purposes, and to lay conductors for conducting gas through the streets of each such city, village, and town with the consent of the municipal authorities, and under such reasonable regulations as the authorities may prescribe. Held, that the statute constitutes the franchise of the company, and the consent of the municipal authorities merely makes it operative within that municipality.

[Ed. Note. For other cases, see Gas, Cent. Dig. § 2; Dec. Dig. § 7* For other definitions, see Words and Phrases, vol. 3, pp. 2929-2942-; vol. 8, p. 7666.]


When the municipal authorities consent to the use of its streets by such company, the company is entitled to exercise within the municipality all the powers given by the statute during the whole term of its corporate existence, and hence may lay conductors in the streets for the purpose of supplying gas, not only in that particular municipality, but in other towns and villages mentioned in the charter.

[Ed. Note. For other cases, see Gas, Cent. Dig. § 2; Dec. Dig. § 7.*]

Appeal from Trial Term, Westchester County.

Action by the Northern Westchester Lighting Company against the President and Trustees of the Village of Ossining. From a judgment enjoining defendant from interfering with the laying of gas pipes in the village of Ossining, defendants appeal. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

T. G. Barnes, of Ossining, for appellants.

Frank L. Young, of Ossining, for respondent.

WOODWARD, J. The plaintiff, as the successor to the Northern Westchester Light and Power Company by a merger, was on the 28th day of April, 1912, engaged in laying its gas mains or conductors in the streets specified in the complaint for the purpose of supplying its customers in the village of Ossining with gas, and extending its said

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

gas mains beyond the limits of the village of Ossining to and through the village of Briarcliff Manor, and to and through the village of Pleasantville, when the defendant by force drove the plaintiff's employés from their work and prevented the laying of the pipes. The plaintiff thereupon brought this action to restrain the defendants from interfering with the work, and a preliminary injunction issued, which, upon the trial of the action, was made permanent, and the defendants appeal from the judgment.

[1] The defendants urge that they are unable to find any law giving the authorities of one municipality the right to grant to a gas company the power to tear up its streets, without consent of abutting owners, to lay pipes to supply gas to an outside municipality. It may be remarked, in passing, that the defendants have no interest in the question of the rights of abutting owners. Their only interest in the streets of the village of Ossining is that of the public in the highways, and, whatever rights the owners of the fee may have, these are not within the control of the officers of the municipality.

[2, 3] With this question out of the way, it is clear to our mind that sections 60 and 61 of the Transportation Corporations Law fully provides for doing just what the plaintiff was attempting to do when the defendants interfered. Section 60 provides for the incorporation. of gas companies, and for naming the towns, villages, cities, and counties in which the operations of the corporation are to be carried on, and section 61 provides that, if incorporated for the purpose of “supplying gas for light," it shall have the additional powers

"to manufacture gas, and to acquire by purchase or otherwise natural gas, and to sell and furnish such quantities of gas as may be required in each city, town, and village named in its certificate of incorporation, for lighting the streets, and public or private buildings or for other purposes; and to lay conductors for conducting gas through the streets, lanes, alleys, squares, and highways, in each such city, village, and town, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe. Any corporation authorized under any general or special law of this state to manufacture and supply gas shall have the like powers and privileges."



Here is clearly ample authority for the plaintiff in this action, organized, as it is, for the purpose of supplying gas for light, to make use of the streets of the village of Ossining, either to supply that municipality with gas, or for the purpose of supplying any of the other villages or towns named in its certificate of incorporation, provided it has the consent of the municipal authorities. There is no dispute that on or about the 7th day of March, 1905, the defendant granted to the Northern Westchester Light & Power Company (the plaintiff being its successor) the right to lay its conductors for conducting gas through the streets of Ossining, without limitation, but it is contended by the defendants that this consent did not operate to give the plaintiff the right to run its conductors through said village for the purpose of supplying other municipalities. We are clearly of the opinion that the resolution adopted by the defendants in March, 1905, could not have the restricted effect which is here contended for, because the statute under which the consent was given constituted the franchise

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