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irreconcilable. Especially is the extent of this Such is the rule as recently declared. It is, doctrine difficult when we come to that class of however, unsatisfactory, as it seems to do away persons whose senses are defective either by na- entirely with the doctrine. It is valuable, ture or disease. It is the object of this article to however, as showing the tendency of courts to treat especially of this class of cases.

mulct in damages the most culpable party of The law of contributory negligence is stated the two. by Wharton thus: “That a person who, by neg- That persons of defective understanding and ligence, has exposed himself to injury, cannot of tender years have special immunities before recover damages for the injury thus received, is the law, is now well settled and thoroughly una principle

affirmed by the Roman law and is derstood by the profession. This is a necessary thus stated by Pomponius : Quod quis ex culpa consequence and outgrowth of the rule, that a sua damnum sentit, non intelligitur damnum sentire. plaintiff is not entitled to recover, unless he The same view is taken correctly in the Digest used ordinary care and diligence at the time of and is repeatedly affirmed in our own jurispru- receiving the injury. The ordinary care exacted, dence." Wharton on Neg., sect. 300.

is that care "which might reasonably be expected This rule was first distinctly announced by from him in his situation.” Beers v. Housatonic Lord Ellenborough in Butterfield v. Forrester, 11 Railroad Co., 19 Conn. 571. Neither common East 60. That was an action on the case for sense or justice would require the same diligence, obstructing a highway. The evidence showed foresight and care from a deaf, a blind or an inthat the plaintiff

was riding violently when he sane person, or from a child of tender years, as met with the accident. “A party is not to cast from one in the full possession of his faculties. himself upon an obstruction which has been I. As to Deaf Persons. made by the fault of another, and avail himself In Isbell_v. N. Y & N. H. Railroad Co., 27 of it, if he do not himself use common and ordi- Conn. 405, Judge Ellsworth made these remarks, nary care to be in the right. *** One party which although uttered as obiter dicta are worthy being in fault will not dispense .with another's of consideration : "Let us suppose, in this case, using ordinary care for himself.” No exception that instead of the plaintiff's cattle, the plaintiff can be taken to the rule as stated by the learned himself had been on the railroad track, and and able Chief Justice in this case. The infer- that he was too deaf to hear the noise of the ence that has been drawn from it, however, in train or the ordinary alarm given in such a case. some cases, has, we submit, been unwarrantable, This would certainly have been most culpable and the rule as announced' in consequence has and inexcusable conduct on his part, but would been erroneous. In Tuff v. Warman, 5 C. B. N. it have absolved the defendants from the duty S. 585, Wightman, J., made these remarks, say- to exercise reasonable care if they saw the plaining the question for the jury was "whether the tiff, or with proper attention might have seen damage was occasioned entirely by the negligence him? Ought they not in that case to check or improper conduct, or whether the plaintiff so the speed of their train? May they run over far contributed to the misfortune by his own him merely because he is on their track? They want of ordinary care, that but for such negli- may well suppose that he is deaf, or blind, or insane gence or want of ordinary care and caution on or bewildered, and have no right, as we believe, his part, the misfortune would not have hap- to continue their headway as if he was not pened.” See also Witherley v. Reg. Canal Co., there. If they are bound to ring their bell or 12 C. B. N. S. 2; Ellis v. Railroad, 2 H. & N. sound their whistle, as they certainly are, they 424; Martin v. Railroad, 16 C. B. 179; Bridge may be bound for the same reasons to go furv. Railroad, 3 M. & W. 244. The natural de- ther and check their speed a little or to stop duction from this opinion is that the damage entirely.". must be occasioned entirely by the defendant's Accordingly, it has been held, that the cases fault, and that if any negligence, even the slight of blind or deaf persons are in the same category, est, can be imputed to the plaintiff, he cannot and that a person who, from his deafness or recover. The rule is thus broadly stated in other causes, does not understand calls made many cases, but the courts of recent years have upon him to escape danger, is not chargeable shown a disposition to recede from this some- with negligence in meeting a danger of which what narrow doctrine.

he was unconscious. Telfer v. Railroad Co., 30 It would occupy needless time and space for N. J. 188; Whalen v. Railroad Ca, 60 Mo. 323; us to trace the history of this modification of the Schierhold v. Railroad Co., 40 Cal. 447; Ilinois rule. We need only take one case as exempli- Cent. Railroad v. Buckner, 28 Ill. 299; Chic. & fying the change of base in this respect. In R. I. Railroad v. McKean, 40 Id. 218. Radley v. Railroad Co., L. R., 1 App. Cas. 759, These cases go the whole lengtn in holding, Lord Penzance stated the law thus: “Though that a deaf person cannot be debarred from a the plaintiff has been guilty of negligence, and recovery in a suit for damages, by that conduct although that negligence may in fact have con- which would be negligence in a person having pertributed to the accident, yet if the defendant fect faculties of vision or hearing. The same could, in the result by the exercise of ordinary rule of law holds in his case as in that of all care and diligence, have avoided the mischief persons. Infants, persons non compos mentis, which happened, the plaintiff's negligence will deaf and blind persons must all exercise ordinary not excuse him."

care, ordinary care being "that care which might be expected and demanded from any man of J. 188; Railroad Co. v. Graham, 46 Ind. 240; ordinary prudence under the circumstances of Rex v. Longbottom, 3 Cox C. C. 439; Rex v. the case." Their misfortunes enter as an ele- | Walker, 1 Č. & P. 320. ment in the case, to determine whether they II. As to persons of defective vision. have exercised that care which the law exacts. Owing to causes which may be readily sur

But what is the degree of caution which the mised, the decisions on this topic are necessarily law requires of a deaf person? Is he not bound few. Here, also, ordinary care must be exercised, in the case put above, to take notice that a rail- and ordinary care is that care which may reasonroad track is a dangerous place ? Is he not ably be demanded under the circumstances of supposed to know that it is especially dangerous each case. for him? If he approaches the track for the Before any cases arose which concerned perpurpose of crossing, either with a team or with- sons totally or partially blind, the courts had out, is he not bound to look up and down the frequently adjudicated upon cases where accitrack carefully? The law requires that of a dents had happened in the darkness of the night. person in the full possession of his faculties. In Williams v. Clinton, 28 Conn. 264, it was Will it not exact it from one whose hearing is decided that it is not negligence per se to travel permanently impaired ? Accordingly, it has been in the darkness of the night unattended, when held to be negligence for a deaf person to drive there can be no lookout. The court held that an unmanageable horse across a railroad track, the fact of negligence on the part of the plainwhen a train is approaching. It is his duty, it tiff was purely a question of fact for the jury to was said, to keep a lookout and avoid the dan- consider, and sustained the verdict against the ger; and it is no excuse, that the horse in cross- defendant town. ing turned and ran up the track ahead of the That such is the case with reference to persons engine or was driven there to avoid it. Ill. Cent. of perfect vision is palpable. The law requires a Railroad Co. v. Buckner, 28 Ill. 299.

person to keep his premises in a safe condition If the defendants in such a case were guilty of and under all circumstances. Persons riding or gross negligence, there ought to be no question walking in the darkness of the night, -ave a of their liability. But we submit that they right to presume that the ways are perfectly ought not to be mulcted in damages unless in safe and secure. This rule also applies to the extreme cases. If the driver of a locomotive stations of railroad companies or the wharves of sees a man on the track, in front of him, he has steamboat companies. “McDonald v. Railroad a right to assume that the man is in full pos- ! Co., 26 Iowa 124, the leading case on the subject. session of his faculties, and that he will get off See also Cornman v. Railroad Co., 4 H. & N. 781; the track in time to avoid a collision. Such Martin v. Railroad Co., 16 C. B. 179; Longmore cases are not infrequent, and we are assured by v. Railroad Co., 19 C. B. (N. S.) 183. engineers that it is no uncommon thing for In Winn v. Lowell, 1 Allen 178, the plaintiff, persons to continue walking on the track until a female, sustained an injury in crossing the a few seconds before the engine reaches them. street. The evidence showed that her eyesight How is an engineer to know that a man walk- was poor and weak, that she usually wore specing in front of the train is deaf? He can only tacles when walking in the street, but did not judge from appearances, and the conduct of men wear them at this time, and that she was walkis such that the fact that a man walks alonging very fast. The defendants, among other without seeming to notice the presence of the requests, asked the court to charge the jury, “If train, is really of no weight in influencing the the plaintiff was a person of poor sight, common engineer's conduct. Besides, the speed required prudence required of her greater care in walking in order to make their connections renders it a the streets and avoiding obstructions than is very doubtful question whether an engineer required of persons of good sight.”. The judge should, under such circumstances, slacken the refused to so charge, but instructed the jury speed or stop the engine.

that “although the sight of the plaintiff was It should be kept in mind that the plaintiff impaired, yet, unless materially affected, that ants affirmatively. The considerations offered proved, into consideration, upon the question of above, are applicable only in an inquiry as to due care on her part.”. For error in refusing to the facts which are sufficient to constitute neg- charge as requested by the defendant's counsel, ligence in a defendant. It has been held, there- the Supreme Court granted a new trial. fore, that an engineer who sees before him on Perhaps no exception can be taken to the the track a person apparently able to take care abstract rule of law as laid down in the opinion of himself, has a right to presume that such per- of Judge Morton, who delivered the opinion of son, on due notice, will leave the track, if there the court. The only question is, whether the be an opportunity to do so; and the engineer charge of the court was not suitably adapted to will not, in such cases, be chargeable with negli- the facts of the case. gence, if, in consequence of such person's not In the first place, it must be observed, that leaving the track, the train cannot be checked the court in the case above cited, do not intend in time to avoid striking him. Jones v. Rail- to lay down the doctrine that a person of defectroad Co., 67 N. C. 123; Railroad Co. v. Spearen, ive vision is obliged to exercise extraordinary 47 Penn. St. 300; Telfer v. Railroad Co., 30 N. care. If so, it would be in opposition to the


whole current of authorities, and the law exacts of the Massachusetts circuit judge was not sufextraordinary care of no one (Daley v. Norwich ficiently clear and explicit. & Worcester Railroad Co., 26 Conn. 597); they

The case of Davenport v. Ruckman, 37 N. Y. merely say, that the court should have charged 568, will, we apprehend, be regarded as much as requested by the defendant's counsel (see

more satisfactory by the profession, both with supra).

respect to the abstract doctrines announced in Secondly, this case would seem to be in con- the masterly opinion of the court, and in the flict with that class of cases of which Williams thoroughness with which the case was examined, v. Clinton, is a specimen. This latter case is which contrasts favorably with the meagre restrikingly analogous in its circumstances to

port of the Massachusetts case. Winn v. Lowell. There, the plaintiff received an injury while walking in the darkness of the

In that case the plaintiff' sued the defendant night; in the latter, the plaintiff inet with the

for injuries which she sustained by falling into accident in the daytime, through her defective

an excavation made in the sidewalk of a public vision. In the former, too, an element existed

avenue in the city of New York. At the time which was not proved in the latter, the plaintiff of the accident the plaintiff

' was, and previously having been advised not to go along the elevated

hall been, suffering from amaurosis, paralysis of high way on which the accident occured, with

the eyes, and the power of vision of both eyes out a guide, and offers of assistance having been

was impaired. She could not distinguish the refused by her.

features of those she met, but she knew that In the foriner case, too, the defendant's coun

they were persons walking, and a short time sel requested the court to charge the jury is

before the injury she haul been able, ils proved, follows, a request almost identical with that

to distinguish the color of her physician's coat, asked in the Massachusetts case, making allow

and was in the daily habit of walking the streets ance for the difference in the circumstances :

as she had occasion. The court instructed the "that if the night was so dark that the plaintiff ' jury that the circumstance that the plaintiff

' in passing over the highway in question, coulil

was partially blind and fell into the opening in not discover the path way or distinguish other

the sidewalk in the daytime was of no imporobjects along the route she took, on the edge of

tance, and that it was not important that a disthe highway, or distinguish whether it wils am

tinction should be made in that instance. And embankment or level ground, and had been

the judge added: "The question is this: warned as to the darkness of the night and the

whether it was so improper and imprudent for risk of attempting to go without a light or at

the plaintiff to have gone into the street unguide, and persisted in attempting to travel

attended in her then condition of eyesight, that over the highway alone and without a light,

it would be negligence on her part to do so, suffithe plaintiff could not recover; and that it was

cient to prevent her from recovering compensathe duty of the plaintiff to show that she was in

tion for an injury she might sustain from the the exercise of ordinary skill and care, and that

negligence while traveling or passing along the her own misconduct did not essentially co-ope

streets." "This," said Hunt, (..., in giving rate with the negligence of the defendants in

the opinion of the Court of Appeals, “was the producing the injury complained of.”.

precise question to be determined by the jury, It will be seen that the request of the defend

and I think it should have been submitted as a ant's counsel, is very similar to the request asked question of fact, and that it was fairly submitted in Winn v. Lowell; the charge of the judge is

in the above proposition. The streets and sidealso similar. He told the jury, "that they were

walks are for the benefit of all conditions of peoto inquire whether the plaintiff at the time of ple, and all have the right in using them, to the accident, was in the exercise of ordinary

assume that they are in good condition, and to

A care under all the circumstances, and whether regulate their conduct on that assumption. she fell from the embankment in consequence

person may walk or drive in the darkness of of the want of a railing upon it; and, that the

the night, relying on the belief that the corporquestion whether there was negligence or want

ation has performed its duty, and that the streets of reasonable care on her part under all the cir

or walks are in a safe condition. He walks by cumstances, was a question of fact for the jury.”

a faith justified by law, and if he suffers an inThis charge, as we remarked above, was

jury, the party in fault must respond in damages. tained by the Supreme Court.

So, one whose eyesight is dimmed by age, or a The rule of law then announced in the case near-sighted person, whose range of vision was of Winn v. Lowell, may be accepted as good l war's defective, or one whose sight has been 11w (though cloubted by the learned authors of injured by discasc, is each entitled to the same the leading treatise on the Law of Negligence;

rights, and may act upon the same assumption. Shear of Redf. on Neg., sect. 413), that a person

Each is, however, bound to know that prudence of defective vision is bound to exercise greater

and care are in turn required of him, and if he care than one in the full possession of his fac

fails in this respect, every injury he may suffer ulties, although it may be reasonably doubted

is without redress.' whether under the circumstances of that case,

The latter part of this opinion, we think, and in view of the other decisions of which justifies us in our criticism on the Massachusetts Williams v. Clinton is a specimen, the charge case, by the analogy drawn from the cases of



persons receiving injuries in the darkness of conduct may be negligent in him which would the night.

not be so in ordinary persons. It may be mentioned incidentally that Judge 5. In all cases the question of ordinary care Hovey, a judge of very great ability in the

is for the jury. Superior Court of Connecticut, in an important

A. DAVIS SMITH. case, refused to follow the authority of Winn v.

Am. Law Register. Lowell, and relied upon this case of Davenport v. Ruckman, in rendering judgment for the

SUPREME COURT OF OHIO. plaintiff. Only one case has, to our knowledge, been

THE STATE OF OHIO, decided where the plaintiff was totally blind, that of Sleeper v. Sandown, 52 N. H. 244.' There,

John SHANNON. a man totally blind, fell off a bridge through the want of a railing on one side of it. The defend

Under section 33, chapter 8, title 1, of the crimes act of

May 5, 1877, it is unlawful to shoot at or kill wild ducks ant's counsel requested the judge to charge that, on the lands of another person, although within the “it is negligence for one totally blind to travel channel of a navigable river, when the owner has set up, unattended on the public high ways, a mile and

in a conspicuous place on the shore "a board inscribed in

legitimate English characters, thus: «No shooting or a half from home, where and in what manner hunting allowed on these premises." the plaintiff did.” The judge, as in the cases above cited, left it for the jury to say whether

Bill of exceptions to the Court of Common

Pleas of Sandusky County. under the circumstances, the plaintiff exercised

Shannon was arrested on a warrant issued by ordinary care. The remarks of Judge Ladd, in giving the opinion of the Supreme Court, threw

justice of peace of Sandusky county on com a flood of light on this question. "Blindness of plaint of George G. Tindall, charging a violation itself is not negligence. Nor can passing upon

of section 33, chapter 8. title 1, of the crimes act the highway, with the sight of external things

of May 5, 1877. . This section provides: “Who

ever, having received verbal or written notice cut off by physical incapacity of vision in the traveler, be negligence on and of itself, any inore

from any owner of inclosed and improved lands,

or any lands the boundaries of which are dethan passing upon the highway when the same

fined by stakes, posts, water-courses, ditches or things are totally obscured by the darkness of the night." * ** "Now, if in the present case,

marked trees, his agent, or a person in charge

thereof, not to hunt thereon, shoot at, kill or purthe plaintiff knew or ought to have known that

sue with such intent on such lands, any of the it was dangerous for him to attempt to cross this bridge as he did, his attempt to do so would,

birds or game mentioned in sections twentybeyond all question, be want of due care, and he

seven, twenty-eight and thirty of this chapter,

and whoever shoots at, kills or pursues with any could not recover for the injury suffered. But

such intent any of such birds and game on the he had a right to assume that the bridge was reasonably safe and free from defect-that is,

lands of another upon which there is set up in that the legal duty of the town with respect to

some conspicuous place, a board inscribed in legits condition had been performed, and to act

ible English characters thus, No shooting or upon that assumption. If, considering its loca

hunting allowed on these premises,' or pulls tion, the kind and amount of travel usually thereon, shall be fined,'” &c.

down or defaces any such board, or the letters passing over it, &c., a rail on one side was necessary to its legal sufficiency, this plaintiff,

Among the birds or game mentioned in said although blind, had the same right to assume

section 28 are “wild ducks," and the complaint the existance of a rail on each side that any

charged Shannon with shooting and killing wild traveler passing either in the day-time or night- ducks on the land of Tindali, situate in said time would have ; and if an accident happened county, &c. to him by reason of a want of a rail, his own Shannon, having been bound to appear and fault not contributing, no reason can be con- answer said charge in the probate court, was ceived why he is not as much entitled to recover, there tried, convicted and sentenced. On the as though having the sense of vision, he had trial a bill of exceptions, containing all the tesattempted to cross by night and the same mis- timony, was taken, and upon proceedings in erhap had befallen him."

ror, in the court of common pleas, said judgment To conclude, we can regard these principles was reversed. To this judgment of reversal, as settled by the decided cases :

the prosecuting attorney, under sections 38 and 1. The law requires ordinary care of every 39, chapter 5, title 2. of said act, took exceptions,

and the same are now submitted to this court. 2. It never exacts more than ordinary care. The uncontradicted facts appearing in the bill

3. Ordinary care is that care which may of exceptions are, in brief: That Tindall was the reasonably be expected of any one in his 'cir- owner and in possession of a tract of land in said cumstances.

county, bounded on one side by the Sandusky 4. A person of defective senses is bound to river-a navigable stream; that Shannon, on the diligent use of such senses as be has; and October 29, 1877, when the killing of wild ducks if his defects are such as to deprive him of mate- was not prohibited by the statute, was in a skiff rial aids to safety, which ordinary persons have, on the Sandusky river, between the middle thereof


and the shore owned by said Tindall, from which purpose of the legislature was to confer upon position he shot and killed wild ducks swimming the owner of the lands within this state, the ex; in and flying over the water between said shore clusivo right to hunt and kill the designated and the middle of the river; tbat boards in- ganic pon his own premises, and to protect him scribed in legible English characters, “No shoot- in such right, provided he complies with the ing or hunting allowed on these premises," were prescribed conditions in regard to notice. set up in conspicuous places on said shore; and

Anil with regard to notice, if the lands brinthat Shannon had been duly notified by Tindall closed and iuiproved," or if the boundaries he not to shoot or hunt on his lands. It also ap- detined by stakes, posts, water-courses, ditches pears that the position occupied by Shannon on or marked trees,” verbal or written notice “not the river was within the limits of navigation as

to hunt thercon,” will bring the offender within used by boats and other water craft engaged in the operation of the statute. And where a commerce; and also, that the public generally water-course, for instance, il navigable stream, had been accustomed to fish, and kill wild ducks, constitutes a boundary, it is the opinion of a main the same location, in and upon the river. jority of the court, that all persons who have re

Upon this state of facts, the State of Ohio | ceived verbal or written notice not to hunt upon seeks the opinion of this court. Did the court

the lands of the owner, are bound to take notice of common pleas err in reversing the judgment that his lands extend to the middle of the waterof the probate court ?

course, if such be the fact. Lemmon, Finch & Leumon, for plaintiff. W. J. Boardman, also for plaintiff:

But if the lands for not "inclosed and inEverett & Fowler, for defendant.

provel," or if they be not "lefined by stakes, McILVAINE, C. J.

posts, water courses, ditches or marked trees," as This cause and June y. Purcell, decided at this bring hinself and his lands within the protec

well as where they are so defined, the owner may term and reported, having a question in com

tion of the statute by setting up, in sonte conmon, were considered together. In that case it was held, that the title of a riparian owner of land spicuous place thereón, “a board' inscribed in bounded by a navigable stream in this state, ex: hunting allowed on these premises.” And in

legible English characters thus, "No shooting or tended to the middle or thread of the stream: It follows, upon the principle announced in that

such case, all persons engaged in shooting at, case, that the locus of the offense alleged in this, take notice, not only of the statute, but of the

killing or pursuing the designated game, must though upon the surface of a navigable stream, was within the boundaries of Tindall's land, and setting up of such board, and also of the extent was embraced within the literal meaning of the

or boundary of the lands on which the same is notice, “No shooting or hunting allowed on these

set up. And in respect to this notice, it makes

no difference whether the lands or any part prentises." It is true, however, that the right of Tindall to

thereof be covered by water or not. 80 much of his lands as was covered by the

It is clained, however, that this statute was not waters of the Sandusky river, the same being a

intended to protect lands covered by the waters navigable stream, was not exclusive, but subject of a navigable river. A majority of the court to the right of the public to use the same as a can see no grounds upon which lands covered by highway, so that the entry of Shannon within navigable streams should be excluded. They are the boundaries of Tindall's premises, to-wit :

as much the subject of private ownership as unwithin the limits of this public high way, did navigable streams. There is no distinction benot, per se, make him a trespasser; and clearly, tween them made by the terms of the statute. an action against him for trespass quare clausum True, navigable streams in this state are defregit, could not be maintained. Hence, it was

clared to be public high ways; but the right to claimed by defendant, that his conviction was

use a public highway is not abridged by protectwrong, because, as is claimed, this section of the ing the owner of the fec in the exclusive right statute applies only to persons who wrongfully of killing game therein. Travel and commerce break and enter the close of another, contrary to

arc not thereby hindered. And as the power of his expressed will.

the legislature to protect game, or the exclusive The provisions of the statutes were not in right of the owner of land to kill the same on tended to punish trespassers quare clausum fregit, his own premises, is as ample over land covered merely because they inay have been guilty of a

or trespass; but were intended to punish the act of it is over dry land, and as there is no attempt to killing, shooting at, or pursuing game on the distinguish between them in this statute, we lands of another, against which notice may have must hold that all aliko are within the protecbeen given as provided in the statute; so that tion of this statute. a person rightfully on the premises of another Exceptions sustained. inay commit the unlawful act, as well as one who White, J., did not concur. He was of opinion commits a trespass by entering upon the prem- that the statute, being penal, must be strictly ises.

It seems to us that whatever change this construed, and that it did not embrace game statute may have made in respect to the law in found upon the open public highways. relation to trespass on real property, the main [This case will appear in 36 0. S.]

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