VIII. Liability of Railroad Companies for Remote Fires.
Whether a railroad company is to be liable for all fires of which its locomotives are the occasion, is a question so important to the industrial interests of the land, that I may be excused for giving to it in this place a more elaborate discussion than I was able to do in my treatise on Negligence. A squatter, for instance, builds, three hundred feet from a railroad, a shanty, and permits between the shanty and the railroad a mass of dry stubble to collect. This stubble is easily kindled by sparks from the locomotive, and the shanty is soon in a blaze. The same carelessness which left a lane of combustible materials from the railroad to the shanty, leaves a further lane of combustible materials to other buildings, constructed with equal recklessness, a little further on. Over this continuous line the fire races rapidly; and by this process the suburbs of a city, successive stages being in the same way accomplished, is set on fire, and finally the city itself is destroyed. The railroad company is sued for the damage, and it is held liable, and, of course, is swamped; its whole assets, when brought to the hammer, not being sufficient to satisfy the judgment. Or, to take a decided case, a manufacturing company builds a dam to supply its works with water. A heavy rain falls, and the dam is swept away. The water descends on another dam, carelessly built by other parties, and this dam also yields. Another dam, built with equal carelessness, is broken through by the tremendous accumulation of water bearing against it, and finally a valley is flooded and a group of villages submerged. The company owning the dam which first gives way is sued; and a judgment is entered against it for the whole of the final damages, although it proves that but for the carelessness with which dams number two and number three were constructed such page 730 damages would not have ensued. The company thus sued is ruined and its operations closed by the process, just in the same way as the railroad corporation, which was the occasion of the fire in the first illustration given by me, is destroyed. Now, in both these cases the injury to the community is not terminated by the annihilation of the two corporations sued. A subsidiary injury, of no mean dimensions, is to be found in the recklessness which such procedure imparts to non-capitalists dealing with dangerous instrumentalities. If I am held to be personally responsible for the consequence of placing combustible materials by the side of a railroad, or of building inadequate dams at the base of a great manufacturing reservoir, then I will be careful not to place such combustible materials under the eaves of a locomotive engine, or to dam up water, in the trough of a natural watershed, without taking the precautions which a good mechanic, an expert in such work, is accustomed to use. But if I am not so responsible, I will build recklessly, and to this recklessness will be traceable ruin which otherwise would have been averted. The very fact that when a suit for damages is brought, I am skipped over, and the rich corporation behind me attacked, while it assures me, if I am poor, a position of irresponsibility, increases the recklessness of myself and other non-capitalists, and thus increases the risks by which the capitalist, who is alone held liable, is beset.
Capital, by this process is either destroyed, or is compelled to shrink from entering into those large operations by which the trade of a nation is built up. We are accustomed to look with apathy at the ruin of great corporations, and to say, "well enough, they have no souls, they can bear it without pain, for they have nothing in them by which pain can be felt." But no corporation can be ruined without bringing ruin to some of the noblest and most meritorious classes of the land. Those who first give the start to such corporations are men of bold and enterprising qualities, kindled, no doubt, in part by self-interest, but in part also by the delight which men of such type feel in generous schemes for the development of public resources, and the extension to new fields of page 731 the wealth and industry of the community. Those who come in, in the second place, to lend their means to such enterprises after these enterprises appear to be reliable objects of investment, are the "bloated bond-holders," consisting of professional men of small incomes, and widows and orphans whose support is dependent on the income they draw from the modest means left to them by their friends. Nor is it these alone who are impoverished by the destruction of the corporations of which I here speak. The corporation may itself be soulless, and those investing in it may deserve little sympathy, but those whom it employs are the bone and sinew of the land. There is no railroad, no manufacturing company that does not spend three-fourths of its income in the employment of labor. When the corporation's income ceases, then the laborer is dismissed. We hear sometimes of the cruelty of the eviction of laborers from their cottages at a landlord's caprice. But there are no evictions which approach in vastness and bitterness to those which are caused by the stoppage of railway improvements or of manufacturing corporations; in few cases is there such misery to the laboring classes worked, as when one of these great institutions is closed. I think I may, therefore, safely say that the question before us relates eminently to the industrial interests. And in this sense it demands from us the most careful thought.
Stating the question before us in the concrete, it is this:
Is a railroad company liable for damages by fire, of which, through ignition from one of its locomotives, it is one of the occasions, when, between the starting of the fire by the locomotive and the damage, intervenes the negligence or malice of third parties, by which the damage is immediately caused?
Stating the question as an elementary proposition, it is this:
Is a person liable for damages of which, unintentionally, he is one of the occasions, when, between the occurrence of the occasion and the damage, intervenes the negligence or malice of third parties, by which the damage is immediately caused?
This question, it will be at once seen, opens to us the whole page 732 doctrine of causation. What is a juridical cause? Is there a distinction between a "condition" and a "cause?" If so, and should it appear that this distinction is juridical fundamental, how does it bear on the issue before us? This question has been much agitated in other countries and in other generations than our own. Perhaps I may best illustrate it, at least in its historical relations, by adverting to a famous controversy now a century old.
On the 27th of September, 1774, died at the Vatican, Pope Clement XV., not many months after the issue of the bull Dominus ac Redemptor noster, suppressing the order of the Jesuits. The cause of his death has been the subject of a contention in which the doctrines we just noticed are incidentally discussed with singular acuteness and persistency. On the one side, we are pointed to the advanced age of Ganganelli, the secular name by which Clement XV. is best known; his habits of gastronomic indulgence; the similarity of his disease with those usually produced by over-eating; and in particular to a suspiciously excessive dinner he swallowed shortly before his final attack. On the other side, it is argued that while the dyspepsia which he suffered was the occasion, it was not the cause of his death; that his constitution was such that he could have withstood this particular disease for years without succumbing; that the disease was accelerated by a subtle poison administered to him, by which its symptoms were aggravated and made fatal, and that the traces of this poison were detected in his remains. But even supposing that the latter statements are correct, are we to speak of such poison, supposing it to have been negligently given, or supposing it to be part of remedies honestly prescribed by Ganganelli's physicians, as causing his death? Was not that death caused equally by other antecedents in his eventful life? As threads in this cord of causation, are we not to enumerate hereditary infirmities which we can well suppose him to have received from his parents, and the enervating influence of a secluded ecclesiasticism, and the anxieties of the papacy at an era so critical, and that innumerable series of agencies which had united, for several generations, page 733 in bringing Christendom face to face with the revolutions which were then about to convulse the world?
I have introduced this illustration because it gives, in a concrete shape, a case supposed by Mr. Mill,* when advancing the theory of causation which is the basis of the adjudications which I here contest. "For every event," so says Mr. Mill, "there exists some combination of objects or events, some given concurrence of circumstances, positive and negative, the occurrence of which will always be followed by that phenomenon. We may not have found out what this concurrence of circumstances may be; but we never doubt that there is such a one, and that it never occurs without having the phenomenon in question as its effect or consequence. * * It is seldom, if ever, between a consequent and one single antecedent that this invariable sequence subsists. It is usually between a consequent and the sum of several antecedents; the concurrence of all of them being requisite to produce, that is, to be certain of being followed by the consequent. In such cases it is very common to single out one only of the antecedents under the denomination of cause, calling the others merely conditions. Thus, if a man eats of a particular dish and dies in consequence, that is, would not have died if he had not eaten of it, people would be apt to say that eating of that dish was the cause of his death. There needs not, however, be any invariable connection between the eating of the dish and death; but there certainly is, among the circumstances which took place, some combination or other upon which death is invariably consequent; as, for instance, the act of eating of the dish, combined with a particular bodily constitution, a particular state of present health, and, perhaps, even a certain state of the atmosphere; the whole of which circumstances, perhaps, constituted in this particular case the conditions of the phenomenon, or, in other words, the set of antecedents which determined it, and but for which it would not have happened. The real cause is the whole of these antecedents; and we have, philosophically speaking, no right to give the name of cause to one of them, exclusively of the others."
* I Mill's Logic, 2d Lond. Ed. 398.
* Fichte, die Bestimmung des Menschen, Werke ii. 178; cited by Mansell, Aids to Faith, p. 26.
I said there was a second reason for my taking Ganganelli's death to illustrate Mr. Mill's notions of causality. The first reason is, that Mr. Mill Suggests this death himself. The second is, that it enables me to bring to bear on this topic the Roman law, which was that, to pursue the analogy in the way a similar theme is treated by Robert Browning, by the forms of which the pontiff's death was actually investigated. But there are other grounds for appealing to the Roman law to aid in the present investigation. The Roman jurists were not only great lawyers, but they were familiar with the Epicurean scheme of causation which Mr. Mill has lately reproduced. Eloquently is this hypothesis discussed by Cicero; and two, at least, among the Justinian jurists, are referred to by Cicero as masters in the science of jurisprudence in its wide sense. But we have not to content ourselves with mere inferential proof such as this. Ulpian is the most copious writer cited in the digest; and at the very beginning Ulpian takes pains to show us that Greek philosophy has been cautiously weighed by him, in the reaching of judicial results. If, therefore, we are to look for an adequate tribunal to determine what is causality, as a practical question, and in the only shape in which the enquiry can become useful to us, we may well find this tribunal in a court governed by the principles of the Roman law.
"What killed Ganganelli?" We can conceive such an enquiry as this to be instituted before a Roman court of initiatory process, a court exercising functions similar to those of one of our own committing magistrates. "What killed Ganganelli? "In the days of Ganganelli, as well as in the days of Justinian, and in our own days, epicureanism and stoicism each had their votaries; and it is not difficult to imagine epicurean philosophers, who anticipated Mr. Mill in one part of his speculations, and stoical, philosophers, who anticipated page 737 him in another, as among the witnesses of the pontiff's death. An epicurean cook, or chief of the kitchen, would not have been an unnatural inmate ot the pontifical household; and stoical physicians were not likely, in those days, to have been unknown in such a court. We can, therefore, readily conceive of an examination such as the following:
Judge—What, to your knowledge, was the cause of the Pope's death?
Epicurean Cook—The "sum of all his antecedents;" this is the only kind of causation which philosophy can possibly know.
Judge—(Supposing him not to lose his temper at the answer.) But you presided over the Pope's kitchen the day of his death; was there anything that went to him different from his usual diet? Anything to cause indigestion?
Witness—Everything caused everything. Indigestion, if it existed, can not be said to be caused by the Pope eating a particular dish. It was caused, as the philosophers tell us, by the dish, and the Pope's own constitution, and the constitutions of his ancestors, and the particular state of the atmosphere by which he was surrounded, and the particular states of prior atmospheres by which this particular subsequent atmosphere was produced, and—
Judge—But stop. You are here to answer a particular question, and that question you must answer now, or go to prison until you do. You and I have nothing to do with these events you call the "sum of all the antecedents." You saw the food sent to the Pope. Was there anything in it by which his death might have been caused?
Or suppose the question to be put to the surgeons who examined the Pope's remains, What caused his death? And suppose a similar answer to have been made. What other reply can we conceive of than this:
"You are bound to tell which of these innumerable antecedents, of which you speak, was the cause; the only cause which public justice can deal with, and which public safety demands."
Nor is the reasoning of our Anglo-American courts differ page 738 ent in result, though it is couched in less philosophical terms than those by which, as we will presently see, the conclusions of the Roman jurists are defended. Thus, in Stokes' case, a case where every possible defence that ingenuity could devise and audacity propose, was offered, judge after judge, herein following a uniform line of unassailable adjudications, scouted at the idea that Fisk's "constitution" or other "antecedents" had anything whatever to do with the case, except so far as those antecedents tended to show Stokes that he was about to be attacked by Fisk; and it was even ruled that so close and immediate an antecedent as the probing of the wound by the surgeons was irrelevant, unless it should be proved that the probing itself was such as to have produced, as a regular and ordinary inference, the death of Fisk. So in York's case, famous in the annals of Massachusetts jurisprudence, and in Flanagan's case,* reported in the fifty-second volume of the reports of the New York Court of Appeals, the highest courts in Massachusetts and New York, following herein the leadings of all other Anglo-American courts who have discussed the question, dismiss with summary curtness the suggestion that the defendant was in a condition of mind to be necessitated by circumstances to do a particular thing. Sane or insane, there is no one, it is held, who is necessitated to any act by "the sum of all his antecedents."
* Flanagan v. People, 52 N. Y. 699
† Feuerbach, Peinliches Recht; II. Berner, Strafrecht, §§ 6–22.
This process of analysis is one which is necessary, before any moral or juridical judgment can be expressed on any topic requiring juridical action. Here, for instance, are certain revenue frauds alleged to have been perpetrated at St. Louis. Undoubtedly there are antecedents enough, without either of which such frauds could not have been consummated. Unless there had been whiskey, there would have been no tax on whiskey, and no opportunity of fraudulently evading such tax. Had it not been for the civil war we would not have found it necessary to levy an excise; and had there been no excise there would have been no excise laws to elude. Nor can it be said that the antecedents which thus pass before us are such that their agents are necessarily non-liable. If you adopt the doctrine of causation which I here contest, there is no person who contributed to either of these antecedents who is not a party to the St. Louis whiskey frauds. page 740 Mr. Jefferson Davis could be indicted as one of the authors of the frauds; for Mr. Jefferson Davis was prominent in bringing about the war which led to the imposition of the whiskey tax. The few surviving advisers of Mr. Buchanan would come in as parties; for it was to their negligence that wo owe that want of preparation by which the war was made so protracted and expensive. Many a government war-contractor would have to tremble in his shoes; for every dollar that was unduly or recklessly added to the debt was one of the conditions by which the whiskey tax was made necessary. Nor would it be possible, when we read General Sherman's Memoirs, and Mr. Boynton's reply, not to see that there are few among our generals whose negligence may not have contributed very largely to the same result, and whose complicity, therefore, on the theory before us, it is the duty of a court of justice to try. Where, indeed, if the "cause" of whiskey frauds is the "sum of all their antecedents," would we stop? Could we refuse to acknowledge that the love of whiskey is sometimes so maniacal a passion that the desire for its gratification is irresistible? Has not dipsomania, by materialistic philosophers who follow in the wake of Mr. Mill, been regarded as a physical disease which confers irresponsibility? Are not those who urge the passage of laws thwarting such a propensity in some part chargeable with the violation of such laws? Can we exempt, therefore, temperance crusaders from complicity in the whiskey frauds? And who but the voluntary moderate drinkers was it that stimulated the temperance crusade, if they did not directly stimulate the production of whiskey? And could whiskey have been manufactured without grain; and without grain could there have been any whiskey frauds? Who, in fact, can be relieved from prosecution in such case, if all persons who are in any way concerned in producing the conditions of the whiskey frauds are to be viewed as causing such frauds? Yet the absurdity of such reasoning is demonstrated by a mere statement of its consequences. To juridical determine responsibility we must necessarily determine between the cause of an event and its conditions. There is no opinion that can page 741 be reached by us on any pending issue in which the discrimination which is here vindicated must not be employed. We can not act either rationally or justly without so discriminating.
But still a step further may we advance. Ex post facto moral judgment is as objectionable as ex post facto legislation. We have no right to institute a moral code for a new case, and condemn as immoral that which had not been declared immoral before. Nor can this prior announcement of immorality be made exclusively in the abstract, any more than the adjudications of our courts can be constructed simply in, the abstract, without reference to the facts of any particular case. As to constitute juridical precedent there must be decisions on facts litigated at the bar of the courts, so to constitute moral precedent there must be decisions on facts litigated before the bar of public opinion. Hence, in order to justly judge cases arising now, we must justly judge cases that arose in former days; and the conclusions reached as to the cases of earlier eras go to make up the common law of morals by which future cases are to be tried. Hence it is that there is not a single prominent event in history in which, in order to dispense moral justice faithfully in future, we are not compelled to institute this very analysis of causality which Mr. Mill declares to be beyond the philosophical range. The death of Ganganelli is but one among myriads of cases in which we summon philosophy in all its departments, not merely to acquiesce in such a discrimination, but to assist in making it. What caused the death of Napoleon's prisoners at Jaffa? Is Napoleon to be charged with the atrocity of poisoning them, simply that they might not encumber his retreat? Were there any circumstances that mitigate the act, supposing it to be proved? Now, undoubtedly, the men who thus died were sick; undoubtedly the climate was unhealthy; but the whole force of our moral judgment against Napoleon consists in the conclusion that neither sickness nor climate caused these deaths, but that they were caused by Ihe orders of Napoleon himself. What caused the lapse of Europe, after the high civilization of Rome, into the barbar— page 742 ism of the dark ages? Was this a consequence of Christianity, or was it in spite of Christianity? And was it not traceable partly to the enervations of imperialism, partly to the incursions of those Northern hordes whom Christianity ultimately civilized? Hence we have to dismiss, before we can answer this question, those antecedents which we may regard as extraneous to the issue, such as ignorance, barbarism produced by the old despotisms, nervous reaction from the torpor of those despotisms. Now, when we are engaged in-either of the three great duties which we have just successively sketched,—either in judicially determining a litigated issue, or in expressing a moral judgment on a pending measure, or in making up a common law of ethics by determining vexed-questions of the past, it is mocking us to tell us that the cause, the only cause about which we care to know, the cause which we can logically reach, is the sum of all the antecedents. We demand to know which of these antecedents-are mechanical and physical, not subject to moral or juridical law, and which are not mechanical and physical, and which hence are subject to moral and juridical law. We demand to know which antecedents are subjects of moral criticism and-adjudication, and which are not. And as logic is the science of the discovery of truth, logic must make this discrimination for us. Any theory of logic which fails to do this is false to its mission and must be cast aside.
How, then, is causation, in its moral and juridical relations, to be defined? I know no better way than by appealing to the distinction established by Aristotle, to which the Roman jurists constantly advert. Cause, in this view, may be conceived either as material, formal, efficient or final. The material cause is the matter from which a thing is constructed, including the forces used in its construction. The formal cause is the pattern or law or archetype in accordance with which the thing in question takes shape. The efficient cause is the energy of change or motion by which a natural order of sequences is interrupted and a new order instituted. The final cause is that for the sake of which a thing is done; it is, in respect to creation, the final good designed by its page 743 author; τo oυ ευεxα xατ τo αyαθoυ causa finalis. The two last were those with which the jurists solely concerned themselves. The last was used only for exegetical purposes. The discovery of the meaning of a statute might be helped by a consideration of the final cause the law-maker had in view. But cause, to the eye of the jurist as well as of the moralist, is mainly to be viewed in the sense given in the third of Aristotle's categories. The object of jurisprudence, as well as of ethics, is to determine what is the efficient cause of a phenemenon affecting society. Is that efficient cause a cause on which law, ethical or juridical, can properly act? If so, it must be singled out from all other conditions, so that it may be made the subject of moral and juridical action. Hence we find that a cause, in its juridical relations, is such an interposition by a responsible human agent, as changes the ordinary sequence of physical laws, and produces, by its immediate and' regular efficiency, the result under investigation*
* Note.—See, for an able vindication of this definition, Bar's Lehre vom Causalzusammenhange. To Professor v. Bar, one of the most eminent of living jurists, I take this additional opportunity of expressing my indebtedness for the powerful reasoning contained in the treatise to which I here refer.
But, if our range of selection among antecedents is unlimited, why stop at the railroad company? The railroad company may be in fact poor. If put up for sale under a judgment, its value may be but a song; and besides this, it might be worth while to consider whether a jury might not, even for a railroad company, feel some sympathy. For, after all, it will not be merely the "bloated bondholder "who will suffer if the railroad is ruined. Thousands of operatives are mediately or immediately employed in running it, and in keeping it in repair. To its conveniences of transportation all the farmers bordering on it owe a market in which to buy and in which to sell. Even the wood-cutter who has virtually carried the coals dropped by its locomotives and by them set '.fire to the neighboring town,—even this laborer has an in interest in the prosperity of the road; for if the road is killed page 745 out, what becomes of the work by which his living has been made? Even the neighboring town, thus set fire to, is interested; for as the road made it, so with the road it may die. So a jury might argue; and if we are entitled to skip any antecedent we choose, why not skip the railroad company, and attack an antecedent still less likely to find friends,—the rich capitalist, for instance, who contributed to build the road, or the rich manufacturer by whom its locomotives were constructed? Ought not the capitalist, before he lent his money, to have seen to it that his money should be prudently employed, and ought he not to be treated as accessory to damages which would not have occurred but through him? And ought not the manufacturer to have refused to furnish locomotives without impervious spark fenders, and was not his negligence in this respect one of the most conspicuous conditions of the burning of the town? Why, then, not sue the rich man who lent the money, or the rich man who built the locomotives? Or, if not these, why not go back still further, until we light upon some other antecedent, still more wealthy and friendless, by whom the losses we have sustained may be made up?
This, then, leads us to the practical difficulty in the way of the theory of juridical causation which we here contest. Carry this theory logically out, and we lapse into a state of barbarism to which it is impossible to conceive of jurisprudence as giving the faintest toleration. Reckless impecuniosities is to be passed over when we are seeking for a responsible cause, and we are allowed to go back until we hit, in the line of antecedents, upon wealth that is without immediate friends. But what will be the consequences of this? Will the squatter become any more careful by discovering that, outrageous and destructive as is his carelessness, he is not to be brought for it to legal account? Are the dangerous classes to be made any the less dangerous by being thus treated as ciphers whose only value is to increase the verdict against others who, though merely remote conditions of the disaster, are selected for suit simply because they are rich? And will rich men contribute to any ventures which involve such terrible page 746 risks? Who will put money into a railroad, or into a manufacturing corporation, if the imperfections to which such institutions are necessarily subject, are made the basis of suits for damages immediately caused, not by such imperfections, but by the negligence of irresponsible men recklessly tampering with such imperfections? The first result would be the stagnation of business by the withdrawal of capital from organizations involving such risks. A second result would be the stoppage of the wages and the consequent impoverishment of myriads of operatives, who, by these organizations are employed. Another result would be the communism which would follow from a policy which makes wealth the basis of liability; which, as soon as prudence collects money, compels distribution for the benefit of indolence; and which makes the wealth of a man the distinguishing reason why he should be cast in an action for tort. No principle pregnant with such incidents as these can we conceive of the law as tolerating, yet pregnant with these incidents is the principle that all the antecedents of an event are to be viewed as juridical its cause, and that among these antecedents we may select any one we choose for a suit.
I fall back, therefore, as the only sound solution of this problem, to that which I have just proposed, that a person whose negligence may have been one of the antecedents or conditions of an event is relieved juridically from liability, if such negligence is applied to the particular event by the intervening negligence or malice of a third party. Of course from this rule we are to except those cases in which such intervening negligence is the natural consequence of the original negligence. I may leave, for instance, a horse and wagon on a highway by the door of a large public school; and as it is my business to know that such is the case, and that the children, in playing about the school-house, may unconsciously startle the horse, then I may be liable for the injury the horse may inflict by running away. But if I negligently leave my horse and wagon in a lane where no such disturbance is probable, and if through the wild driving and noise of a "rough" tearing down the street, my horse takes fright, page 747 then the "rough," not I, is liable for the harm. Or I may negligently permit the water in my reservoir to percolate into my neighbor's field, and for this I am liable to him; but I am not liable to a distant proprietor whom my neighbor thinks proper to inundate by digging a ditch which pours the accumulated flood down into the latter's cellar. Or, to apply this distinction to the question immediately before us, a railroad company is liable for all damage which, excluding those caused by the intervention of responsible third parties, is the the natural and immediate and regular result of fire negligently escaping from its locomotives. But it is not liable for damage which, had it not been for the negligence or malice of such intervening parties, would not have occurred.*
Francis Wharton.Cambridge, Mass.
* That causal connection, to state the conclusion just given in the abstract, is broken by the intervention of an independent responsible agent, when, without which intervention, the damage would not have existed, is a maxim of the Roman law, which, in my work on Negligence, I have had occasion to state at large. As sustaining this maxim in our own law may be cited the following cases:
Hooley v. Felton, II C. B. N. S. 142; Mangan v. Atherton, L. R. I Exch. 239; R. v. Ledger, 2 F. & F. 857; Sharp v. Powell, L, R., 7 C,P. 253; Saxton v. Bacon, 31 Vt. 540; Stevens v, Hartwell, II Metc, 542; Shepherd v. Chelsea, 4 Allen, 113; Richards v. Enfield, 13 Gray, 344; Perley v, R, R., 98 Mass. 414; Crain v. Petrie, 6 Hill, N. Y. 522; Ryan v, R. R., 35 N. Y. 210; Webb v. R. R., 49 N. Y. 425; S. C., 3 Lans. 453; Hofnagle v. R. R. 55 N. Y. 608; Penna, R, R. v. Kerr, 62 Penn, St. 353; Cuff v. R, R., 35 N. J. 17; State v. Rankin, 3 So. Car. 438. As conflicting directly with the conclusion reached above are to be mentioned, Fent v. R. R., 59 111, 35I; Atchison R. R. v, Stanford, 12 Kans. 354, See Annapolis R. R. v. Gantt, 39 Md. 116; Balt & O.R. R. v. Shipley, 39 Md. 252; Pollett v. Long, 56 N. Y. 200.