A Treatise on the Law of Negligence, Volume 1

Thomas Gaskell Shearman, Amasa Angell Redfield

Baker, Voorhis & Company, 1888

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Title Page

Table of Contents

Index

VOL IPAGE 58555 61 62	xxix

64	xxxiii

CHAPTER	xxxvii

67	xli

74	xliii

76	lxxiii

78	lxxxix

86	xc

Rate of speed 461 Care required of railroads on or near highways 249	249

Care in driving horse cars	252

Care required at highway crossings	256

Care required at other crossings	259

Care of stationary cars and engines	260

Absence of flagman and watchman	262

Negligence of firemen and defects in fire apparatus 266 Duty as to public health and charities	266

Duty as to schools and school buildings	267

VII	1

Duty an essential element	7

Re trictions on liability how far valid	9

Inevitable accident	16

Apparent exceptions to last rule	17

WATER AND WATERCOURSES	18

What is not inevitable accident	19

Absence of intent to produce damage	20

Distinction between negligence and fraud	21

Defendants anticipation of injury not essential 22 Election between contract and tort	22

Damage an essential element 24 Damage must be to plaintiff VOL IPAGE 16 16 18 19 20 21 22 23 24	24

CHAPTER II	25

Breach of duty must be the proximate cause	26

Breach of statutory duty	27

Natural sequence defined	28

Foreseen and unforeseen consequences of negligence	29

Extraordinary consequences of negligence	30

Intervening cause breaking connection	31

Intervening cause must be either a superseding or responsible cause	32

Duty to rebuild destroyed highway VOL IIPAGE	33

Protection of travel pending repairs	35

What are defects under the statute	36

Superseding cause and inevitable accident distinguished 39 37 Intervening cause must be a free agent	37

Intervener not culpable if ignorant of facts	38

Defects in margins of way	39

Whole width when must be passable	42

Sidewalks and street crossings	44

Superior force concurring with defendants delay	45

A AREA WWww wwwww 32 34 36 37 38 34 Intervening responsible cause not superseding 35 Intervening cause illustrated 36 Intervening cause m...	47

Overhanging roofs awnings trees c	48

Damages against attorneys 646	50

Application of the rule to passenger carriers	51

Duty to place lights barriers c	54

Corporations liability for acts of its licensee	55

Degree of care required	56

49	57

Liability of licensee	58

Conditions implied in license	59

CHAPTER IV	61

Obstructions incident to building operations	62

Obstructions incident to traffic	64

Obstructions from natural causesice and snow 66	66

When liable for gross negligence only	69

Rule in New York and Connecticut 365 Liability of individuals for obstructing highways	70

CHAPTER V	71

Liability of corporation for third persons acts	73

Basis of action for injuries	74

Notice of defect when necessary 75	75

What will suffice to shift the burden of proof 59 When maxim res ipsa loquitur applies	76

CHAPTER VI	81

Damages must be special	84

The relation of attorney and client	86

Action when to be brought	87

Effect of mistaken judgment under sudden alarm	89

Duty of looking and listening	90

Effect of defendants advice or invitation	91

Plaintiff not bound to anticipate negligence	92

Plaintiffs fault must contribute to injury	93

Plaintiffs fault must proximately contribute to injury	94

90	95

Care required in traveling at night	97

98	98

ΙΟΙ	102

Unlawful weight of load 381 Sunday traveling	103

Damages recoverable 105	105

Turnpikes are highways	109

Statutory liability for nonrepair	112

Reappropriation of road by the public	113

General rule of liability for negligence	115

116	116

Bridges distinguished from highways	117

118	118

By whom bridges are repairable	122

Bridges across navigable streams	124

Management and protection of drawbridges	126

Tollbridges	127

State canals	129

Obligation of canal companies to navigators	130

Construction of canals	131

Maintaining embankments etc	133

Repair of towingpath and fencing canals	134

Contributory negligence	135

CHAPTER XIX	136

What dangers must be provided against	138

Laying track on highway	141

Damage to abutting owners	144

Accessories of railroads	146

Negligence increasing damages only no bar	150

Rights of compensated landowners	151

Plaintiffs fault need not be cause of injury	152

Interference with highway	153

Effect of technical trespass	154

Roadbridges over railroads	156

Technical trespass no bar	157

Crossings	158

Defendants later negligence rule in Davies v Mann	160

Commonlaw obligation to fence	164

Illustrations of rule	166

Rule not applicable where plaintiff willfully incurs injury	167

Liability for defective acknowledgments	168

Unequal operation of commonlaw rule	169

Illinois rule of comparative negligence	170

Rule in Georgia and Tennessee	174

Effect of violating Sunday law	175

When fence must be made	176

Fences must be sufficient	177

Plaintiffs fault in representative capacity	178

Burden of proofconflict of decisions	179

Effect of statutes	181

Burden of proof on defendant	182

Who is a volunteer assistant	183

Burden ought to be on defendant	184

Presumption against negligencehow overbalanced	185

Risks assumed under express orders	186

What proof of care sufficient	187

Liability of firms and corporations	188

Inference from circumstances	189

Duration of masters duty	190

Pleading absence from fault	191

Questions of law and fact	192

Duty to employ sufficient force	193

What materials master bound to provide	194

What materials master not bound to provide	195

Masters duty as to materials not on his property	196

Illustrations of masters liability	197

Low bridges	198

Low bridge cases analyzed	199

CHAPTER VII	200

Other structures necessarily	201

Who may sue on breach of contract	202

Masters duty to warn servant	203

Liability for selling dangerous goods	204

Private actions upon public obligations	205

What is sufficient notice to master	206

Landlords and tenants	207

Effect of servants knowledge of defects	208

Infants and lunatics	209

Joint liability of trespassers and others	210

Who are not jointly liable	211

Test of servants prudence	212

CHAPTER VIII	213

The statutory remedy	215

The statute of New York and other states	216

Special and limited liability in certain states 217	217

Limited liability in Pennsylvania 130 Special homicides dwelling c 219	219

Liability of lessees of road	220

Liability of agents and contractors	221

Action when brought in state where injury occurred	222

Who may bring action	223

For whose benefit action may be brought	224

No action without surviving statutory beneficiary	225

When illegitimates entitled to benefit of statute	226

Notice of defect when to be given	227

Cause of action for instantaneous death	228

Limitation of time to commence action 140 Effect of decedents settlement or waiver of statutory benefit	229

RAWWWA	230

Owners willful conduct	231

VOL IPAGE 306	232

Owners illegal conduct	233

The rule in Kentucky and other states 664	234

Rule in Maryland and Georgia	235

309	236

Companys action against owner	238

Care required to avoid injury to persons on track	239

Illustrations of want of care 241	241

Implied authority of servant	246

Negligence of other persons or companies	248

Duties imposed by general statute	268

Exercise of quasijudicial discretion	269

Nominal master when not liable	270

Devising plan of public improvement	271

Error of judgment distinguished from negligence	272

Devising a necessarily dangerous plan	273

Injuries from sewers defectively planned	274

Plan found defective should be altered	275

Discretion in the application of limited funds	276

Liability of trustees for employees acts	277

Professional advice may excuse defect in plan	278

Statutory directions as to plan	279

Absolute ministerial duties	280

Liability for breach of absolute duty implied	281

Legislative intention to be ascertained VOL 1PAGE 458 460 462 462 463 466 468 471 473 475 478 479 480 482	282

Damage consequent on authorized	283

No duty to do an unlawful thing	284

Duty as to lands and structurespiers	285

Management of private enterpriseswater service	286

Maintenance and repair of sewers	287

Negligence of subcontractor and part contractor	288

Implied liability for nonrepair of streets	289

Negligence the only ground of action	290

Corporate liability for acts of agents	291

Who are agents of corporation	292

Subordinate officers and agents	293

Liability of employer for his own neglect	294

Departments of city government	295

Departments having auxiliary duties only	296

Omission of duty not excused by officers personal neglect	297

Independent contractors not servants	298

Corporate liability for authorized wrongful acts of agents	299

Acts beyond corporate power to authorize or ratify	300

Actions over	301

Immunity of political officers 303 Immunity of judicial officers	303

Test of judicial character of	304

Who may complain of breach of duty	317

CHAPTER XIV	325

Trustees of public charities	331

461	344

Defects in way concurring with defects in adjacent premises	347

Care required of passenger	353

Negligence in getting on and off a vehicle	357

Illustrations	360

Violation of statute forbidding use of platforms etc	363

Negligence in being in improper part of vehicle	365

Servant not having notice of danger not prejudiced by notice of defect	368

Negligence in changing from car to car	369

Effect of continuance in service after notice of defect	370

Safe transportation of baggage	372

Presumption as to servants knowledge	373

Means of knowledge how far notice	374

When carrier not responsible for baggage	375

Application of rule to minors	376

Nature of the business	378

Duties of masters to minors 220 Effect of servants knowledge of defects in master personally	379

Servants duty to warn master	380

Obligations not merely in contract	381

Burden of proof	382

Application of this rule 224 Who are fellowservants	383

Who are not fellowservants	384

others	385

Responsible only for negligence	386

Unlawful messages	387

American rule servant in command not fellowservant with	388

Duty as to receiving messages	390

Messages must not be altered	391

English rule servant in command fellowservant with others	392

To whom company is responsible	393

Connecting lines	395

English rule criticised	396

Who are viceprincipals 230 Viceprincipals not fellowservants 229 English rule condemned in England 396	397

Certain unreasonable rules considered	398

Notice of rules necessary	400

New York discrimination against corporations	401

General limitations of masters liability for viceprincipal	402

Validity of contracts exempting from liability generally	403

Servants must be in same common employment	404

What constitutes common employment	405

Who are in common employment	406

Illinois rule as to common employment	407

Illustrations of common employment	409

Evidence under special contract	410

Illustrations of fellow servants in common employment under English rule	413

Illustrations of fellowservants in common employment under all rules	415

CHAPTER XI	423

Servants liability to fellowservants	426

Liability to shipmasters	427

Joint liability of master and servant	428

PART III	429

Extent of states immunity	431

State may consent to be sued	432

Immunity of State agents	433

Municipal corporations as State agencies	435

Legislative control over municipal corporations	436

Public and private functions of municipal corporations	439

398	440

Counties towns etc as State agencies	441

Counties in Pennsylvania Maryland etc	445

New England towns	447

When liable at common law	448

Public dutiespreserving the peace	450

401	451

Nonliability for mob violence	452

Imperfect execution of law and ordinances	453

Granting licenses a governmental act	455

Preventing spread of conflagration	457

402	459

Character of disease may determine degree of skill	464

483	466

Physicians not liable for errors of judgment	470

Liability for misconduct of deputy	475

Diligence in executing process	476

Obstructions to view	478

Safe keeping of property	479

Walking upon the track	480

Liability for insufficient sureties	482

Liability for escape	483

CHAPTER XXX	484

Owners liability for animals trespass	485

Owners notice of disposition of animal	486

Presumption of notice of disposition	488

What deemed sufficient notice	491

Sufficient evidence of notice	492

Keeping infectiously diseased cattle	495

Animals straying on highways and railroads	496

Who will be deemed owner of animal	498

Ownership of animal how proved	500

Imputed knowledge of animals habits	501

Separate owners when jointly liable	502

Plaintiffs contributory negligence	503

Driving trespassing animals off land	505

Negligence in impounding cattle	506

Statutory liability for dogs	507

Negligence in management of horses etc	509

Duty to assist passengers in getting on and	510

Rate of speed	512

Injuries committed by vicious animals	513

Liability for insufficiency of vehicle	514

Violation of roadlaw evidence of negligence	515

Persons on wrong side assume risk	516

Cases in which the law of the road does not apply	517

Management of sleighs	518

No obligation to fence at common law	522

Statutory regulations	523

Acts done maliciously or in bad faith 306 Liability of judges of courts not of record 527 528 311 Election inspectorshow far liable 310 Quasijudicial...	524

Who are entitled to protection of animals by fence	525

Who are entitled to protection against animals by fence	526

Liability for damage to animals through want of fence 527 888	528

Fire accidentally kindled on ones own land	530

Liability for spread of fire	532

533	533

Nonjudicial public officers classified	537

Negligent performance of ministerial duties 314 Liability for omissions of duty 537	538

Fires kindled to clear land	539

Subordinates neglect no excuse for omission to act	540

Firing other land	541

Statutory liability	542

Fire communicated from locomotives	543

Duty to use approved appliances on locomotives 545	545

Other neglect than want of approved appliances 675 Evidence of origin of fire	547

Burden of proof of origin of fire	549

Statutory liability of railroad company	553

Combustible material on right of way 555	555

Plaintiffs contributory fault 680 What use of adjacent land not contributory negligence	557

What is not contributory negligence 558	558

Copyright

Other editions - View all

A Treatise on the Law of Negligence, Volume 1
Thomas Gaskell Shearman,Amasa Angell Redfield
Snippet view - 1941

A Treatise on the Law of Negligence, Volume 1
Thomas Gaskell Shearman,Amasa Redfield (A.)
Snippet view - 1964

Common terms and phrases

accident action agent Allen Baltimore Bank Barb Boston bound brakeman bridge Brooklyn Canal carrier charge Chicago child circumstances City Clark common carriers Conn contract contractor contributory negligence court damage danger decisions defect defendant defendant's negligence degree Delaware duty employed employer employment engineer Erie evidence Exch exercise fact fault fellow-servant fendant gence Grand Trunk Hannibal Harlem Haven held liable highway horse Hudson River Hurlst Illinois imputed injury Intervening cause Iowa Johnson jury Kansas Keokuk killed Lake Erie latter ligence Louis Louisville Maine Mass master Milwaukee Minn Missouri N. J. Law N. Y. Central Ohio St ordinary owner Pacific passenger Penn Pennsylvania Pennsylvania Co Pittsburgh plaintiff presumption proximate cause prudent question railroad company railway reason recover repair responsible rule servant Smith Stat statute street Terre Haute tion track train trespasser Turnp Utica Verm Western Wisc York

Popular passages

Page 411 - ... (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition...

Appears in 404 books from 1816-1997

Page 60 - ... that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.

Appears in 269 books from 1832-2004

Page 195 - The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid...

Appears in 123 books from 1869-2003

Page 21 - In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.

Appears in 229 books from 1833-1999

Page 414 - every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employees...

Appears in 161 books from 1828-1997

Page 413 - ... 1. By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant, were in proper condition; 2.

Appears in 312 books from 1816-1997

Page cxviii - Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done.

Appears in 247 books from 1869-1999

Page 230 - The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved.

Appears in 216 books from 1832-2004

Page 155 - But there is another proposition equally well established, and it is a qualification upon the first, namely: that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him.

Appears in 199 books from 1870-1999

Page 414 - Kansas of 1874 providing that "every railroad company organized or doing business in this state shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage...

Appears in 157 books from 1870-1997

Bibliographic information

Title	A Treatise on the Law of Negligence, Volume 1 Issues 69029-69044 of 19th-century legal treatises A Treatise on the Law of Negligence, Thomas Gaskell Shearman
Authors	Thomas Gaskell Shearman, Amasa Angell Redfield
Edition	4
Publisher	Baker, Voorhis & Company, 1888

Export Citation	BiBTeX EndNote RefMan

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