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was held that a street car company which had been accustomed tomake change for passengers could not refuse to do so when a passenger offered a five-dollar gold piece for a fare of five cents. But a late case in Mississippi goes far beyond this.2 A passenger at Gulfport in that State tendered to the ticket agent a $100 bill and asked for a ticket whose price was two dollars and one cent. The agent told him he would have to pay his fare on the train. He went aboard and when he tendered the bill to the conductor was told he would have to pay 4 cents a mile instead of 3V£ cents which would have been the rate had he bought a ticket at the station. The passenger refused to pay the higher rate; was ejected from the train and sued the railroad for damages. The trial court held as a matter of law that the tender at the station was not a legal one and gave judgment for the defendant. The Supreme Court rules the question of the reasonableness of the tender was one of fact for the jury and it lays it down that a passenger need not tender the exact fare, but, if he tenders a reasonable sum, the carrier must accept it and furnish change; what is a reasonable sum depending largely upon whether the carrier is a steam railroad or a street railway, and upon the ease or difficulty in handling passengers in each locality, Says the Court:
"We do not undertake to lay down any rule defining what is and what is not reasonable tender in all cases. This is a mixed question of fact and law to be determined in each case, taking into account always the size of the city, town or village, where the passage is demanded, the volume of business done and the facilities for making change. We do say, however, that in this particular case the court could not, as a matter of law, declare the $100 bill an unreasonable amount in a city life Gulfport. There is no question of the good faith of the appellant, and surely we have fallen on uncertain times if a white gentleman with a pocket full of $100 bills cannot buy first-class passage on a train operated by a common carrier doing both an interstate and intrastate business without paying a premium so to do, especially when he has transacted all business on hand and is destined for the attractive and cosmopolitan city of New Orleans. Such conduct on the part of the railway company comes near violating the constitutional guaranty accorded every citizen of the pursuit of happiness."
But Smith, C. J., dissents, saying:
"The rule which I understand my associates to announce, and with which I am in accord relative to the duty of a ticket agent of a common carrier in the making of change when the amount tendered him exceeds the amount of the fare demanded, is that laid down in 6 Cyc. p. 547, that: 'While the tender of more than the amount, with the requirement of making the change may perhaps, under the ordinary usages of such business, be sufficient, yet the person making the tender cannot expect the agent or servant of the carrier to be prepared to make change in any amount, no matter how large, and there must be a reasonable approximation of the amount tendered to the fare.' This rule seems to me to require an affirmance of the judgment of the court below, for I think that it can be said,
as a matter of law, that a $100 bill does not reasonably approximate a fare of $2.01. To require a railroad company to keep its ticket agent supplied with sufficient money to change all bills of this amount that may be tendered them in payment of small fares will not only seriously handicap it in its business by keeping an unnecessarily large amount of its money thus tied up, but will make its ticket offices the most attractive of places for burglars and robbers; and, moreover, its agents cannot transact their business with that expedition to which the traveling public is entitled, if all or a great part of the intending passengers put them to the trouble of changing bills for large amounts tendered in payment of small fares."
Liarility Through Neglect Op Statutory Safeguards WithOut Other Evidence Of Negligence.—The decision of the Court of Appeals in the recent case of Arnbcr-j v. Kinlcy3 authoritatively settles, says the New York Law Journal, a question as to which there has been considerable controversy in that State. Plaintiff's testator, who was in the employ of defendant, was burned to death in the latter's tannery loft, a large wooden building for drying oiled hides, the first floor of which was the ground, with two board floors above, the upper one sixteen feet from the ground. There were no fire escapes on the building. Ten minutes before the fire the deceased was seen at the elevator on the lower floor and after the fire his body was found on the ground under the place where he had been at work that day on the third floor. The New York Labor Law requires that "such fire escapes as may be deemed necessary by the Commissioner of Labor shall be provided on the outside of every factory in this State consisting of three or more stories in height." It was held that the building was a factory within the definitions of the Labor Law. and that it was for the jury to say under the circumstances disclosed whether failure to provide fire escapes was the cause of death. The court also held, determining the mooted point above referred to that it was not necessary "for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence." In the various discussions the less accurate phraseology has perhaps been more commonly used, it being argued whether failure to observe the provisions of a statute or ordinance constituted conclusive evidence, or amounted merely to some evidence of negligence.
Probably the existing weight, certainly the increasing current, of authority throughout the country, is harmonious with the present decision, which moreover effectuates justice and public expediency. In the prevailing opinion the distinction is indicated between statutes or ordinances expressly for the protection of the very person
a N. Y. Law Jour., Apr. 26. 1915.
or class of persons who are injured and statutes which are more general in their application for public safety or benefit. As a foundation for the present decision the court goes back to "Willy v. Mulledy (78 N. Y., 310), which passed upon an enactment of the first kind. It appeared "that the plaintiff's wife was suffocated in her apartments on the third story of a tenement house by reason of a fire in a lower story of the building. A statute of the State (Laws of 1873, chap. 863) required that such tenement house should be provided with fire escapes and made it a misdemeanor to violate the statute. The defendant's house had no fire escape." The Court of Appeals said:
"Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire escape, and the duty was imposed for the sole benefit of the tenants of the house so that they would have a mode of escape in the case of a fire. For breach of this duty causing damage it cannot be doubted that the tenants have a remedy. It is a general rule that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative; and where a duty is imposed there must be a right to have it performed."
An enactment of the second class was considered in Marino v. Lehmaier.4 It appeared that section 70 of the Labor Law then in force prohibited the employment of children under the age of fourteen years in factories and made a violation a misdemeanor. "A boy thirteen years and three months old was employed in defendant's printing establishment and his fingers were cut off by a cog wheel of a printing press. It was held that the fact that the proprietor of the factory was made criminally liable did not relieve him from civil liability, and in an action therefor the illegal employment is in and of itself some evidence of negligence where the accident could not have happened but for the employment. Of course, in such a case the violation of the statute through, for instance, employing a person a few weeks under the prescribed age would not be as solely or directly a procuring cause of death or injury as a neglect of fire escapes, failure to guard dangerous machinery, etc.
There is ample theoretical ground for the distinction drawn and it is entirely proper in cases of neglect of specific statutory safeguards to derive a cause of action either from the statute itself or, in other words, to treat the neglect as conclusive evidence of negligence.
A similar position has recently been taken by the Supreme Court of Nebraska.5 A statute of that State provides that in hotels or lodging houses a proprietor shall employ and keep at least one
competent watchman on duty between 9 o'clock p. m. and 6 o'clock a. m. to guard against fire and give warning in case a fire breaks out. It further requires that a large alarm bell or gong shall be placed on each floor or story of a building used as a hotel, to be used to alarm inmates in case of fire. It appeared that during the night, while plaintiff was a guest in defendant's hotel, a fire occurred ; that plaintiff was injured in attempting to escape by means of an inadequate fire rope escape; that the hotel was not properly patrolled to discover fires in their inception; and that the guests were not seasonably notified to escape before the fire gained headway. There were other elements of negligence in this case besides failure to obey the statutory provision with regard to a watchman, but, speaking of that single feature, the Court said:
"This is sufficient to attach a civil liability to the innkeeper for negligence in not properly safeguarding his guest . While an innkeeper is not an insurer of the safety of his guest, yet he may not omit to do the things that are reasonably necessary for his safety and protection (11 Am. & Eng. Ency. Law, 1st ed., 32). The law seems to be well settled that when a statute commands or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his benefit or for a wrong done him contrary to Its terms."
The following language from the dissenting opinion of Mr. Justice Miller, in Gelder v. Int. Ore Treating Co.,6 treating of neglect to guard machinery as required by section 81 of the Employers' Liability Act, felicitously expresses the argument for the position now taken by the Court of Appeals:
"I am aware that It has been said in many cases that the violation of a municipal ordinance or a statute is evidence of negligence. But in all of those cases other elements were involved in the determination of the question of the defendant's negligence. Either duty violated was not mandatory as to the plaintiff or its violation was not the immediate cause of the injury. In this case the plaintiff was injured by the violation of a mandatory duty imposed for his benefit and without the Intervention of any other cause. Negligence is the violation of duty. Surely it would not have been error for the court to charge that it was the mandatory duty of the defendant to guard this machine if it was practicable to do so, the danger being obvious. How, then, can it be said that it was error to charge that the defendant was negligent If it violated that duty?"
The Court of Appeals of New York exercised common sense and promoted justice in holding that in the present case a finding was authorized that the injury occurred "without the intervention of any other cause." We think it might be legitimate to go much further than was required to be done in this case in concluding that lack of statutory safeguards was the cause of an accident.
The Traffic Policeman And The Negligent Motorman.—The traffic policeman whose presence has become more necessary and
o 150 App. Div., 184, 189.
whose liability to injury has become very great in the streets of our large cities since the advent of the automobile, appears in an Appellate Court as a litigant in Mobile R. Co. v. Burch7 where one in the City of Mobile, Alabama, sued a street railroad company for damages for personal injuries. The plaintiff was able to invoke a city ordinance prohibiting any person driving a vehicle or operating a street car from crossing either street at frequented intersections of two streets until signaled by one of the traffic officers on the post. The Supreme Court ruled that it was negligence for a street car to cross such a street intersection without a signal. It was further laid down that where a traffic policeman struck by a street car had his back towaVds such car. and the motorman gave no warning by ringing the gong or otherwise, the negligence in crossing a street without a signal from one of the traffic officers stationed there might have been the proximate cause of the injury, as the policeman had a right to assume that the car would not cross without a signal, and, acting upon such assumption, to refrain from moving from the track until the ear was so signaled. The evidence showed that at the time of the accident the plaintiff was a police officer in the City of Mobile, who was at such time stationed, under orders from the municipal authorities, at the intersection of two streets for the purpose of looking after, regulating and directing at that point, in conjunction with another officer there stationed, traffic of all kinds, to the end of preventing collisions and accidents; such point being, even on ordinary occasions, a much used and frequented crossing in the city, and more so on the occasion in question, when the President of the United States was in the city, which fact attracted to it large crowds. "Were there no city ordinance; and merely according to custom in controlling street traffic by officers, the policeman would have a right to assume that a car would not cross without a signal. The court discusses the duty of cars towards traffic policemen on general principles. It was laid down that if a street car motorman saw a traffic policeman on the track or in dangerous proximity thereto, with his back to the car, he was guilty of negligence in failing to sound the gong or to give warning in some way of the car's approach, as he had no right to assume that the policeman was conscious of the approach of the car. The proposition is advanced that unless a street car motorman knows or has good reason to believe that a person on or dangerously near the track is deaf, he may, after the sounding of the gong or giving warning in some way of the car's approach, assume that such person hears the warning and will get out of the way, but that assumption cannot be indulged after such person's danger becomes imminent, and when such time arrives it is the duty of the motorman to stop the car and avoid the injury if he can do so. The position of a traffic policeman on duty is always more or less one