all that would be demanded would be such humane attention, such "first aid to the injured" as could be expected from the master or his representative upon the spot.

In King v. R. R.,38 it was, however, held that while the conduct of a conductor of defendant in refusing to carry home an employee whose feet had become frozen while shoveling snow at an isolated point on its line, was, morally speaking, highly reprehensible in a gross act of inhumanity, the company owed no legal duty to him to transport him to a point where his injuies could receive attention.

89

Here it is necessary to discriminate between duties and privileges. Between the right under the certain circumstances to act in a particular way, and the duty to do so. No doubt a father may justify force in defence of his son; a servant in defence of his master; a husband in defence of his wife, and vice versa. But while he is privileged to interfere for his son's or master's or wife's protection, he is under no legal duty to do so. No action has ever been maintained against the cowardly servant, father, or husband, who ran away when his master, son, or wife was attacked. So, while it is constantly held that a man may justify taking very considerable risks in order to save human life, none the less there appears to be no legal liability if he fails to do so. 40 It is important to bear this distinction in mind in considering another class of cases, those in which it is held that a corporate agent may bind its principal for expenses incurred in aiding servants patrons, or strangers, who have been injured by the innocent operation of its business. The scope of a servant or agent's employment is by no means limited to the performance of those acts which the employer is legally bound to do. Of course, if the act is one which the employer is bound to have done, it will be inferred that a servant performing it is authorized to do so.

"23 R. I., 583.

"Eckert v. R. R.. 43 N. Y., 502; Corbin v. City, 195 Pa., 461.

See Carpenter, C. J., Buch v. Armory Co., 69 N. H., 257.

But there are many things which are purely discretionary with the master, but which may yet well fall within the scope of the servant's employment if they tend to advance the master's interests. It by no means follows, therefore, that because a railroad is held liable to a physican employed by its conductor or other official representative to render medical assistance to persons injured by its operation that the court is prepared to recognize that it is the company's duty to render such services.

So, while it is held in England that a general manager has the power to bind a railway for its surgical attendance furnished persons injured upon its lines," and that an inspector whose duty it is to care for persons injured, by its operations may pledge the credit of the company for lodgings furnished to such persons at an inn,12 no English case can be found holding the railway liable for a failure to supply either medical attendance or lodgings to those innocently injured by its operations. So, while it has been held in Kansas that a division superintendent has authority to provide medical attendance to a servant 3 though not to provide similar services for a passenger" the existence of any duty to care for those whom one may innocently

"Walker v. R. R., L. R., 2 Ex., 228.

Langan v. R. R., 26 L. T. N. S., 577.

"R. R. v. Winterbotham, 52 Kan., 433.

43

"R. R. v. Batty, 35 Kan., 265. It is difficult to see the force of the distinction drawn between aid to a servant and to a passenger. The reason given is that the master has an interest in preserving the health of a skilled employee, but they have no similar interest in the health of a passenger. This, however, seems to overlook the interest which the company possesses in minimizing the injuries of its injured passengers, and so reducing the amount of the damages recoverable if it turn out that the railroad has been delinquent. Since the company's representative must act at once, he can hardly be asked to determine on the spot whether the accident renders the company liable or not, and he should be, therefore, allowed a certain latitude of discretion as to whether it is to the company's interest to aid the passenger. And the company's liability should not be allowed to depend upon whether he turned out to be right or wrong in his judgment. It would appear that a railroad is not responsible for the acts of its train crew in their humane effort to relieve the sufferings of an injured trespasser. The company owing no duty of relief to trespassers, acts of the crew are done out of purely personal

injure, or to remove them from a perilous situation in which one has innocently placed them, is expressly denied in Cappier v. R. R.45

On the whole, it may be said that duties to take positive action for the benefit and protection of others attach only to certain relations; and are imposed only when absolutely necessary for the protection of others and only to the extent generally necessary to afford them protection. Save where the state has by legislative enactment imposed such obligations, they do not exist, unless there be some family relation; tenure or occupancy of real property, or the voluntary act of consciously entering into some relationship to which such duties are attached because necessary for the protection of one's associates. Even in the case of family relationship there is present the will of the citizen to become a husband or father, so that even here the relation is, in the last analysis, the creature of voluntary action on his part. The occupancy of real estate is, save perhaps in the case where it comes into one's possession by inheritance, a conscious voluntary act. It is not too much to say therefore that saving the case of an inherited estate, if indeed this be an exception, no man can be saddled with a burden of positive action without some voluntary act on his part which renders him subject thereto. In addition it would appear that save in the case of family relations, where the interest of the state to avoid being unduly burdened with the support of those whose relations are able to care for them naturally leads to the burden of the support of the members of a family being placed upon its head, no obligation beyond that of good faith and fair dealing is laid upon any individual

humanity and have no tendency to further the company's interests. So, in Ollet v. the R. R., 201 Pa., 361, it was held that where a train crew had taken a youthful trespasser against his protest to a hospital the company was not liable to him in an action of false imprisonment.

❝66 Kan., 649.

It is perhaps possible even to presume a willingness to take the benefit of an inheritance; at all events the estate at some period has come into the line of descent by the voluntary act of some ancestor.

unless he voluntarily occupies a relation materially beneficial to him. Finally it may be said that these obligations only attach where the one party, having exclusive control of a condition, has the entire power to prevent harm arising from it, and where the other, from the very nature of the relation, must be altogether helpless and incapable of protecting himself, and so is forced to rely implicitly upon the care of his associate for his safety.

Francis H. Bohlen.

(To be Continued.)

VESTED AND CONTINGENT INTERESTS AND

THE RULE AGAINST PERPETUITIES.

Mr. Kales' takes the ground that Mr. Gray's exposition of the distinction between vested and contingent interests is capable of some further development. Mr. Kales then makes some criticism on the definition given by Mr. Gray, and on his position as to the application of the rule against perpetuities to remainders. He points out that it is of vital importance to a writer on the rule against perpetuities to know what the exact difference is between a vested and contingent remainder. It is proposed in this article to offer a few suggestions on the subject.

What is a contingent remainder, and what is the exact nature, if it can be ascertained, of the contingency upon which a contingent remainder is contingent?

According to the principle of the common law, there could be no interval between the preceding estate and the remainder. The remainder must fall into place immediately upon the termination of the preceding estate, and if it did not do so, its opportunity to take effect as a remainder was gone forever.

An estate, therefore, which was so limited that it might not take effect as a remainder at the proper time, was said to be a contingent remainder, by which, it is apprehended, was meant that it was contingent whether it would ever be a remainder.

The contingency then, upon which a contingent remainder is contingent, is the uncertainty that it will take effect

'Article, "Several Problems of Gray's Rule Against Perpetuities, Second Edition," 20 Harvard Law Review, 192, 1907. See article by Mr. Kales, "Future Interests in Land," 22 Law Quar. Review, 250, 383, July-October, 1906, and criticism thereon, in 20 Harvard Law Review, 243, 1907.