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Vol. I.)

N. Y. C. R. R. v. LOCKWOOD.

[No. 1.

society, and the better administration of the laws had diminished the opportunities of collusion and bad faith on the part of the carrier, and rendered less imperative the application of the iron rule that he must be responsible at all events. Hence the exemptions referred to were deemed reasonable and proper to be allowed. But the proposition to allow a public carrier to abandon altogether his obligations to the public and stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages of the law.

Hence, as before remarked, we regard the English statute, called the railway and canal traffic act, passed in 1854, which declared void all notices and conditions made by common carriers, except such as the judge at the trial, or the courts should hold just and reasonable, as substantially a return to the rules of the common law. It would have been more strictly 80, perhaps, had the reasonableness of the contract been referred to the law instead of the individual judges. The decisions made for more than half a century before the courts commenced the normal course which led to the necessity of that statute, giving effect to certain classes of exemptions stipulated for by the carrier, may be regarded as authorities on the question as to what exemptions are just and reasonable. So the decisions of our own courts are entitled to like effect when not made under the fallacious notion that every special contract imposed by the common carrier on his customers must be carried into effect, for the simple reason that it was entered into without regard to the character of the contract and the relative situation of the parties.

Conceding, therefore, that special contracts, made by common carriers with their customers, limiting their liability, are good and valid, so far as they are just and reasonable ; to the extent, for example, of excusing them for all losses happening by accident, without any negligence or fraud on their part, when they asked to go still further, and to be excused from negligence, - an excuse so repugnant to the law of their foundation and to the public good, — they have no longer any plea of justice or reason to

, support such a stipulation, but the contrary. And then, the inequality of the parties, the compulsion under which the customer is placed, and the obligations of the carrier to the public, operate with full force to divest the transaction of validity.

On this subject, the remarks of Chief Justice Redfield, in his recent collection of American Railway Cases, seem to us eminently just." It being clearly established then,” says he, “ that common carriers have public duties which they are bound to discharge with impartiality, we must conclude that they cannot, either by notices or special contracts, release themselves from the performance of these public duties, even by the consent of those who employ them ; for all extortion is done by the apparent consent of the victim. A public officer or servant, who has a monopoly in his department, has no just right to impose onerous and unreasonable conditions upon those who are compelled to employ him.” And his conclusion is, that, notwithstanding some exceptional decisions, the law of to-day stands substantially as follows: “1. That the exemption claimed by carriers must be reasonable and just, otherwise it will be regarded as extorted from the owners of the goods by duress of circunstances, and,

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Vol. I.]

N. Y. C. R. R. v. LOCKWOOD.

(No. 1.

therefore, not binding. 2. That every attempt of carriers, by general notices or special contract, to excuse themselves from responsibility for losses or damages resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and, therefore, based upon principles and a policy which the law will not uphold."

The defendants endeavor to make a distinction between gross and ordinary negligence, and insist that the judge ought to have charged that the contract was at least effective for excusing the latter.

We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence. And if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply “negligence.” And this seems to be the tendency of modern authorities. 1 Smith's Lead. Cases, 6th Amer. ed.; Story on Bailments, $ 571; Wyld v. Pickford, 8 M. & W. 443 ; Hinton v. Dibbin, 2 Q. B. 661; Wilson v. Brett, 11 M. & W. 115; Beal v. South Devon R. Co. 3 Hurlst. & Colt, 337; L. R. 1 C. P. 600; 14 How. 486 ; 16 How. 474. If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the performance of various duties, and the fulfilment of various contracts, we think they go too far; since the requirement of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed. The compilers of the French Civil Code undertook to abolish these distinctions by enacting that “every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.”. Art. 1382. Toullier, in his Commentary on the Code, regards this as a happy thought, and a return to the law of nature. Vol. 6, p.

243. But such an iron rule is too regardless of the foundation principles of human duty, and must often operate with great severity and injustice.

In the case before us, the law, in the absence of special contract, fixes the degree of care and diligence due from the railroad company to the persons carried on its trains. A failure to exercise such care and diligence is negligence. It needs no epithet properly and legally to describe it. If it is against the policy of the law to allow stipulations which will relieve the company from the exercise of that care and diligence, or which, in other words, will excuse them for negligence in the performance of that duty, then the company remains liable for such negligence.

The question whether the company was guilty of negligence in this case, which caused the injury sustained by the plaintiff, was fairly left to the jury. It was unnecessary to tell them whether, in the language of law writers, such negligence would be called gross or ordinary.

Vol. I.)

WEIR 0. KIRK.

(No. 1.

The conclusions to

hich we ha

come are: First. That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law.

Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.

Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.

Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.

These conclusions decide the present case, and require a judgment of affirmance. We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire.

Judgment affirmed.

SUPREME COURT OF PENNSYLVANIA.

[OCTOBER, 1873.]
NUISANCE DEFINED. POWDER MAGAZINE.

WEIR V. KIRK.

In determining what constitutes a nuisance it is proper that all the circumstances of

the case be considered. The erection of a powder magazine near a public highway, in a growing neighbor

hood, enjoined, although not in or near a thickly settled neighborhood.

This was a bill in equity praying for an injunction to restrain the defendant from erecting and maintaining a powder house or magazine in Indiana township, Allegheny County, Pa., on the line of the Sharpsburg and Kittanning turnpike road, about half a mile north of the borough of Sharpsburg, and near the residences of the complainants. The answer admitted the fact that he was engaged in erecting the powder magazine, &c., but denied that there was any reason to apprehend danger to persons or property from an explosion.

Charles S. Fetterman, Esq., who was appointed master, submitted the following as his conclusions, viz. :

1. That the magazine in controversy, if erected and maintained, will pot be a common nuisance.

2. That the complainants have failed to show, by any means whatever, any grounds upon which to base any reasonable apprehension of danger to themselves, their families, and property, from the present location of the magazine in controversy, or that they have sustained any real, 'actual damage to or depreciation in the value of their property; or that there is any reasonable apprehension of an explosion of the magazine while being used with reasonable care for the purpose for which it is intended.

Vol. I.)

WEIR v. KIRK. .

(No. 1.

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John Barton, A. M. Brown f S. Schoyer, Jr., Esqr8., for appellants, cited Rhodes v. Dunbar, 7 P. F. S. 290, and claimed the rule to be that a powder magazine is a nuisance whenever it is so located as to cause injury to persons and property in case of an explosion.

George Shiras, Jr., J. W. Kirker $ Thomas W. Kirker, Esqrs., for appellee, cited The People v. Sands, 1 Johnson, 78; Carpenter v. Cummings, 2 Phila. Rep. 74 ; Rhodes v. Dunbar, 7 P. F. S. 274; Richards' Appeal, 7. P. F. S. 105; Huckenstine: Appeal, 20 P. F. S. 102. The opinion of the court was delivered by

SHARSWOOD, J. The great difficulty in all cases of this character is not in the ascertainment of the true rule of equity, but in the application of that rule to the facts. While it may be easy to draw the line between what is and what is not a nuisance, which equity ought to enjoin, it is by no means so easy to determine whether the circumstances of any particular case ought to place it on one side or the other of that line. It is rare that any number of men will be found to agree in their judgment upon such a question.

One remark, however, may be hazarded, as preliminary to a brief consideration of the circumstances of this case, in which I think all will agree. There are many kinds of business, useful, and even necessary, in every large community, especially where manufacturing is carried on on a large scale, which certainly are not nuisances in themselves, but which nevertheless become so in view of the circumstances of the neighborhood in which it is proposed to establish them. The present Chief Justice, in his opinion at nisi prius, in Rhodes v. Dunbar, 7 P. F. Smith, 275, enumerates twenty-nine kinds of such useful establishments which have been declared public nuisances.

There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such a vicinity. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travellers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds. beyond the immediate neighborhood of the residence of the citizens. This, public pol as well as the health and comfort of the population of the city, demand. 7 P. F. Smith, 275. It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital and been carrying on business for a long period of time, from that of one who comes into a neighborhood proposing to establish such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance and notice that if he persists in his purpose, application will be made to a court of equity to prevent him. In the case before us the defendant occupies this position.

It is not contended that a powder magazine — a building for storing large quantities of gunpowder — in the midst of a thickly settled neigh

Vol. I.)

WEIR v. KIRK.

(No. 1.

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borhood, is not a nuisance. By the act of Assembly of March 20th, 1856, Pamph. L. 137, it is made unlawful for any person or persons to have or keep any quantity of gunpowder or gun-cotton in any house, store, shop, building, cellar, or other place within the city of Philadelphia (except in the public magazines, or in a quantity not exceeding two pounds for private use), unless in the manner provided in the act, which provisions in the main are, that no person shall deal in the article without a license, and if licensed shall not keep on hand more than twenty-five pounds, and shall have a painted sign distinctly legible to all passers by, with the words " licensed to sell gunpowder,” and that every carriage for conveying the article shall have painted on each side, in letters distinctly visible to all passers-by, the word “gunpowder.” A public magazine has been erected, by the authority of the Commonwealth, near the mouth of the Schuylkill, and a state superintendent appointed, whose fees are regulated by law. Act of May 5th, 1864, Pamph. L. 841. One of the general powers conferred upon boroughs by the act of April 3, 1851, Pamph. L. 320, is “to prohibit within the borough the carrying on of any manufacture, art, trade, or business, which may be noxious or offensive to the inhabitants ; the manufacture, sale, or exposure of fire-works, or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place of gunpowder, fire-works, turpentine, or other inflammable articles, and to prescribe such safeguards as may be necessary.” Thus the legislature has recognized that the storing of gunpowder in large quantities in thickly settled places, is a nuisance to be guarded against by public authority. But it is not confined to cities and boroughs. This court has acknowledged and declared it as a case clearly within the general rule of equity upon this subject, in the opinion of the majority as pronounced by Mr. Chief Justice Thompson, in Rhodes v. Dunbar, 7 P. F. Smith, 274. After remarking upon the particular character and danger of the establishment which was the subject matter of the complaint in that case, which was a steam planing mill, which had long been established in the neighborhood, had been burned down, and the injunction asked for was against its reërection, and which the majority of the court thought was not within the rule, he proceeds : “ These observations give no just grounds to draw the inference that a powder magazine or depot of nitro-glycerine, or other like explosive materials, might not possibly be enjoined, even if not prohibited, as they usually are, by ordinance or law. It is not on the ground alone of their liability to fire, primarily, or even secondarily, that they may possibly be dealt with as nuisances, but on account of their lia bility to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury which, being instantaneous, extends alike to property and persons within its reach. The destructiveness of these agents results from the irrepressible gases once set in motion, infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burning building, let it burn ever so fiercely, in most cases have a chance of escaping injury. Not so when explosive forces instantly prostrate everything near them, as in the instances of powder, nitro-glycerine, and other chemicals of an explosive or instantly inflammable nature.” This reason is so cogent that nothing could be added which would increase its

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force.

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