STREET RAILWAY REPORTS, ANNOTATED.

Edited by Messrs. F. B. Gilbert, M. Bender, and H. J. Hinman. Volume IV. Albany: Matthew Bender & Co. 1907.

EPITOME OF THE LAW AFFECTING MARINE INSURANCE By Lawrence Duckworth, of the Middle Temple. Second Edition. London: Effingham Wilson. 1907.

LEGAL ESSAYS. By the late James Bradley Thayer. Boston: Boston Book Co. 1908.

AN ESSAY ON PROFESSIONAL ETHICS. By the Hon. George Sharswood. Fifth Edition. Reprinted by the American Bar Association. Philadelphia: T. and J. W. Johnson. 1907.

FEDERAL USURPATION. By Franklin Pierce. New York: D. Appleton & Co. 1908.

THE MORAL DUTY TO AID OTHERS AS A BASIS OF TORT LIABILITY.

I.

An interesting problem is presented in several recent cases. How far, if at all, is one man bound, being able to do so without serious inconvenience to himself, to go out of his way to care for those injured without any fault of his?" How far is he bound to extricate another from a perilous position? How far must he act, if at all, to mitigate the consequences of an injury, where he is personally free from all fault? It is curious to find that many text writers flatly assert the existence of such a duty, at least in those cases where the harm or peril has been caused by some act of the defendant, even though that act be legally innocent. This doctrine is so opposed to the normal attitude of common law, and to the statements thereof, generally it is true by

Shaw v. R. R., 114 N. W., 85 (Minn., 1908); Raasch v. Elite Laundry Co., 98 Minn.; Whitesides v. R. R., 128 N. C., 229; Cappier v. R. R., 66 Kansas, 649, 69 L. R. A., 513, and Prospert v. Suburban Railway Co., 67 Atl. R., 552 (R. I., June 27, 1907).

'Beach on Contributory Negligence, Sec. 215; Thompson on Negligence, vol. ii., sec. 1744.

way of dictum, of so many eminent judges, that it is necessary to examine the decided cases to see whether they afford any authority in favor, first, of a general duty to act as a good Samaritan; or, second, whether innocent but injurious action entails upon the actor a duty to remove as far as possible the injury which he has caused; or, third, whether again, there may not be other definite classes of circumstances or relations out of which may arise a duty of this sort peculiar to themselves.

There is one class of cases often cited and which may at first glance seem to support a duty of active care and protection based upon the helpless peril of him who claims it.

'Among others the statement of Willes, J., in Gautret v. Egerton, L. R., 2 C. P. 371: “No action will lie against a spiteful man, who seeing another running into a position of danger merely omits the warning." Also Mr. Justice Field in U. S. v. Knowles, 4 Sawy., 517: "It is undoubtedly the moral duty of every person to extend to others assistance when in danger." "And if such efforts should be omitted by any one when they can be made, without imperiling his own life, he would by his conduct draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society." So, Carpenter, C. J., says in Buch v. Amory Co., 69 N. H., 257: "With purely moral obligations, the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad sees a two-year-old babe on the track and a car approaching. He can easily rescue the child with entire safety to himself. And the instincts of humanity require him to do so. If he does not, he may perhaps justly be styled a ruthless savage and a moral monster, but he is not liable in damages for the child's injury or indictable under the statute for its death.

The most usual cases of this sort are where after a trespasser is discovered in a helpless condition upon the tracks of a railway, an engineer of one of its trains fails to take care to avoid running over him. Tanner v. R. R., 60 Ala., 621; Spearen v. R. R., 47 Pa., 300; R. R. v. Kelly, 35 C. C. A., 571. Of this sort is the case of Pannell v. R. R., 97 Ala., 298, often cited in support of a duty to take steps to rescue even a trespasser from a perilous position. Here the plaintiff's intestate, being caught between two freight cars, the yard-master seeing his peril, gave no warning thereof to the engineer of the train and allowed it to be operated just as though the intestate was not in danger. Here, of course, the injury was caused by the defendant's positive misfeasance in conducting its business without any regard to the intestate's well recognized peril.

These are the cases which hold, that,-admitting that no duty exists to anticipate the presence or peril of one trespassing upon one's premises or meddling with one's personal property-due regard must be taken in the owner's operation of his business upon his premises or in the use of his property, if the trespasser's helpless peril be known, not to cause him harm. However, the duty here is not to take positive steps to remove the trespasser's peril nor to mitigate or relieve any injury which he may have sustained. They do not lay down any duty to aid or benefit the trespasser; they merely require that the owner shall not by his own action, improper because of the known peril of the plaintiff, turn the trespasser's peril into harm, or add new injury to that already received. Conceding the prevalence and justice of the rule that while no duty exists to anticipate or guard against the merely possible peril of one, who, without the owner's permission, intrudes upon his premises or meddles with his property, a duty does exist not to act after knowledge of the trespasser's presence and danger is brought home to the owner, in a way to ripen it into injury, no support can be derived from it for the contention that the law has recognized as a legal duty the moral, ethical, and humanitarian obligation to aid the unfortunate.

There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, between active misconduct working positive injury to others and passive in action, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant.

'The same conception appears to lie at the bottom of the so-called doctrine of Last Clear Chance, applicable to cases where the plaintiff has contributed by his conduct to his own injury. In such case the defendant, though guilty of wrongdoing, is relieved from liability, unless he knowing, or being in duty bound to know, of the plaintiff's helpless peril or injury, fails to take care that he may not add to it by his subsequent conduct. Some of the cases cited in support of the duty to act for the protection of the helpless are merely instances of the application of this doctrine. Such was the case often cited, Weitzman v. Nassau R. R., 33 App. Div. N. Y., 585; 53 N. Y. Supp., 905.

This distinction is founded on that attitude of extreme individualism so typical of anglo-saxon legal thought. Misfeasance differs from non-feasance in two respects; in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof. The difference between the nature of the alleged misconduct is in theory obvious, but in practice it is not always easy to say whether an alleged misconduct is active or passive. There is a borderland in which the act is of a mixed character, partaking of the nature of both.®

The difference between the results of non-feasance and misfeasance while quite as fundamental, is much less obvious. The final physical injury to the plaintiff may be the same whether defendant's alleged misconduct is an act of violence or a failure to protect him from the violence of others. But, there is a point intermediate between the plaintiff's actual harm, and the defendant's misconduct, where its consequences are substantially different. In the case of active misfeasance the victim is positively worse off as a result of the wrongful act. In cases of passive inaction plaintiff is in reality no worse off at all. His situation is unchanged; he is merely deprived of a protection which, had it been afforded him, would have benefited him. In the one case the defendant, by interfering with plaintiff or his affairs, has brought a new harm upon him, and created a minus quantity, a positive loss. In the other, by failing to interfere in the plaintiff's affairs, the defendant has left him just as he was before; no better

So, while to use an article known to be defective is palpably misfeasance, and while a mere failure to provide protection for those who by one's bare permission use one's premises is plainly passive non-feasance, the use of a chattel for a particular purpose without having first ascertained whether it is fit for such purpose is a compound of both. There is both action, i. e., the use of the chattel and non-feasance, the failure to perform the positive duty of inspecting it to ascertain if it be defective, and then repairing it so as to secure the safety of those apt to be affected thereby. Still, the final cause of whatever injury is sustained being the use of the chattel, the tendency is to consider that the whole constitutes an act of misfeasance.