« AnteriorContinuar »
acts afford no legitimate basis for construing | factory repairs or improves after an accident such an act as an admission of a previous peg: bas happened, so as to prevent the possibility lect of duty. A person may live exercised all of future accidents, the just inference is, not the care wbich ihe law required, and yet, in that he was previously guilty of negligence, the light of the new experience, after an unex but that, proinpted by humane motives and inpected accident has occurred, and as a measure fluenced by the new information supplied by of extreme caution, be may adopt additional ibe fact that an accident has happened, he has safeguards. The inore careful a person is, the exerted extraordioary care and taken such premore regard he has for the lives of others, the cautionary measures as render it impossible more likely he would be to do so, and it would ibat anyone should be injured in the future. seem to be unjust that be could pot do so with. It is unjustly reversing the presumption to hold out being liable to have such acts construed as tbat such an owner improves or repairs because an admission of prior negligence. We ibiok be was at some time anterior to the time of such a rule puts an unfair interpretation upon making the improvements or repairs guilty of human conduct, and virtually holds out an in- an actionable wrong. True policy and sound ducement for continued negligence."
reason require that men should be encouraged The authorities are collected and discussed to improve or repair, and not be deterred from in the case of Malley v. Hartford Carpet Co., it by the fear that if they do so, their acts will 51 Conn. 524, and it was there said: “The fact be construed into an adinission that they bad that an accident has bappened and a person been wrong-doers. A rule wbich so operates bas been injured immediately puts a person on as to deter men from profiling by expera bigber plane of diligence and duly from ience and availing themselves of new informawhich be acts with a view of preventing the tion has nothing to commend it, for it is possibility of a similar accident, which should neither expedient por just. operate to commend rather than condemn the Accidents do bappen despite the utmost care person so acting. If the subsequent act is and diligence, but, with very rare exceptions, made to reflect back upon the prior one, al. the bappening of an accident does not of itself thougb it is done upon the theory that it is a supply grounds for inferring negligence. It is mere admission, yei it virtually introduces in common knaavledge that accidents occur which to the transaction a new element and test of even the highest degree of care cao peither annegligence which bas no business there, not ticipate por prevent; but in cases where an exbeing in existence at the time.
traordinary accident happens which ordinary The question received consideration in the prudence could not have foreseen or antici. very recent case of Hodges v. Percival (III.) 23 pated, peither a natural nor an artificial person N. E. Rep. 423, and in the course of the discus- is liable for a failure to exercise exiraordinary sion the court said: “The happening of an ac- care. Wabash, St. L. & P. R. Co. v. Locke, cident may inspire a party with greater dili. 112 Ind. 404. gence to prevent a repetition of a similar The law does not, as a general rule, require occurrence, but the exercise of such increased anyone to exercise extraordinary care or rig: diligence ought pot, necessarily, to be regarded ilance. The question in this case, and in all as tantamount to a confession of past peglect.” others like it, is whether the defendant prior
The rule asseried in the cases from which we to the accident used due care; and whether have quoted is declared in many other cases. due care was or was pot useil must be deterDouqun v. Champloin ?'ransp. Co. 66 N. Y. 1; mined by the precedent facts and attendant Baird v. Duly, 68 N. Y. 547; Dale v. Delaware circumstances, not from what sub-equently ocL. & W. R. Co. 73 N. Y. 471; Salters v. Dela- curs. If a person does all that is reasonable ware & H. Canal Co. 3 Hun, 333; Payne v. under the facts as they exist and are known at Troy & B. R. C), 9 Hun, 526; Cramer v. Bur. the time of tbe injury, or at some antecedent lington, 45 lou a, 627; luilson v. Chicago & N. line, be is not a wrong-doer, for no one is W. R. Co. 59 lowa, 581; Ely v. St. Louis, K. bound to anticipate and provide against unC. & N. R. Co. 77 NIo, 84.
usual and unexpected accidents. The rule stated and enforced in the cases re- In Lane v. Ailantic Works, 111 Mass, 136, it ferred to is the only one that can be defended was said: “The test is to be found in the prob on principle. To declare the evidence compe. able injurious consequences which were to be tent is to offer an inoucement to omit the use anticipated, not in the number of subsequent of such care as the new information may sug. events and agencies which arise.” Events may gest, and to deter persons from doing what the cast their shadows before so as to render an act new experience informs ibem may be dove to wrong, but they cannot cast them backward prevent the possibility of future accidents. The over an act not wrong when it was performeffect of declaring such evidence competent is ed, and make it a tornous one. to inform a delendant that if he makes changes The fact that the bappening of an accident or repairs he does it under penalty, for, it ine may convey information producing a convicevidence is competent, it operates as a confes. tion or belief that bad extraordinary precaution sion that be was guilty of a prior wrong. If it been taken the injury would bave been preis competent, then it would be the duty of the vented does not legitiinately tend to prove ibat court to charge tbe jury that they must re- ordinary care and vigilance were not exercised. gard the making of subsequent repairs as evi. All may be done that ordinary care requires, dence of antecedent negligence, and this, cer and yet a person satisfied liy experierce hat tainly, would violate settled principles, for it a bigher degree of care may insure absolute is what occurs į rior to the action, and not what safciy may employ extraordinary means to bappeps afterwards, that determines whether prevent accidents io the future. In doing this there bas or has not been a culpable breach of he does what is commendable, and, certainly, duty. If, for example, the owner of a mill or i he ought not to be restrained or checked by
the fear that if he does resort to unusual means the old notes, which the appellant surrendered to insure safety, be may be treated as one who up to her, were found in her possession, wiib confesses that he was a wrong-doer when the the name of the payor torn off. Tbe appellant accident occurred. It is unjustly burdening one instituted this proceeding against the estate of who, influenced by the light supplied by James McCloskey to recover the amount reevents, resorts to greater precautions to insure maining unpaid on the original debt. Upon the safety of others.
the facts found the court stated conclusions of The incidental remark made in the case of law adverse to the appellant. Goshen v. England, 119 Ivd. 368, cannot be It is undoubtedly true that taking the note considered as an authoritative affirmation of the of a third person for a pre-existing debt is no right to adduce evidence of subsequent repairs payment, in the absence of an express agreeto prove precedent negligence.
ment that it shall be taken as payment. GodJudgment reversed, with instructions to award frey v. Crisler (Ipd.) 22 N. E. Rep. 999 (presa new trial.
ent term); Bristol Mill & Mfg. Co. v. Probsco, 64 Ind. 406.
The books all agree that there must be a Gcorge W. DICK, Appt.,
clear and special agreement that the creditor
sball take the paper absolutely as payment, or George W. FLANAGAN, Admr., etc., of it will be po payment if it afierwards turns James McCloskey, Deceased.
out to be of no value. Johnson v. Weed, 9 (......Ind.......)
Johns. 311; Ontario Bank v. Lightbody, 13
Weod. 103. Suit cannot be maintained on a note These principles are not, however, controlwhich has been surrendered up for a new one ling in the present case.
There is nothing upon which judgment has been taken, although in the special tinding, nor in the evidence, 10 that new note is that of a third person and the indicate that the note taken was wortbless. judgment thereon is uncollected.
After taking the note, the appellani elected to (February 25, 1890.)
pursue his remedy upon the new securities AI PPEAL by plaintiff from a judgment of the which he had taken. He recovered a judg.
Circuit Court for Cass County in favor of ment upon the note, and foreclosed the mortdefendant in an action upon certain promissory gage which be took as security; and it does not potes which had been surrendered up upon the appear but that bis security was ample and execution by a third person of a new note in abundant. Where the note of a tbird person place thereof. Affirmed.
is taken for a pre-existing debt, which is surTire case sufficiently appears in the opinion. rendered up, and the holder of the note thus
Messrs. McConnell & McConnell, for taken elects to sue, and merge the note into a appellant:
judgment, he will be estopped to say that he did The new note was not received in payment; not take the new note in substitution for, and in bence there was neither an extinguishment nor extinguishment of, the old debt, especially a sale of tbe old one.
while the judgment so taken remains, so far as Smith v. Bement, 17 Johns. 340; Bristol Mill appears, a valid, enforceable security. After & Mfg. Ca, v. Pro'asco, 64 Ind. 406; Tyner v.
ove has taken a second or substituted note, and Stoops, 11 Ind. 22; Allright v. Griffin, 78 Ind. surrendered up the original, and has cut off 182.
all defenses to the note so taken, eilber by MC88r8. George W. Funk and Dudley transferring it to an innocent boller, or by H. Chase for appellee.
himself putting it into a judgment, he will be
estopped from taking anoiber judgment against Mitchell, Ch. J., delivered the opinion of the original debtor on the obligation theretofore the court:
surrendered up. Tlooker v. Hubbard, 97 Mass. The special finding of the court shows that 175; Dewey v. Bell, 5 Allen, 165; Bigelow, James McCloskey, late of Cass County, died Estop. 515 ed. 681. in the year 1870, leaving a widow and children. Where a new note and mortgage are taken He was indebted to the appellant, Dick, in an as collateral security for a pre-existing debt, amount exceeding $500, for which sum the the new securities, in the absence of au er. latter held two notes, which remained unpaid press agréement, will not extinguish the prior at the time McCloskey, died. Subsequently debt, but if the new securities are mersed into Rebecca McCloskey, widow of the decedent, I a general judgment the legal effect is to merge po administrator buving been appoinud, paid the original debt, and all prior securities, idio $175 on the indebtedness, and, at tbe request the judgment, wbich becomes the bigher of the appellant, and to prevent the latter irom security; and unless it is necessary, in order to enforcing payment trem the estate, executed preserve some superior equity, the original her note, in wbich she agreed to pay the security cannot be resorted to as a cause of amount remaining unpaid, with an enhanced action. Cissna v. lluines, 18 Ind. 496; Art rate of interest, and also executed a mortgage v. Zehering, 38 Ind. 429. Brown v. Darrah, on renl estate as security for the debt. Nothing 95 Ind. 86; Ward v. llangard, 75 Ind. 381. was suid at the time about taking the pote of If the appellant had been permitted to estab Mrs. McCloskey in payment of the debt due lish bis claim against the estate of James Mcfrom the estate, but the old notes were surren- Closkey, he would bave bad two valid, enforcedered up to her; and subsequently judgment able judgments for the same debt, ayuinst two was taken against her for the amount of the different estates. This cannot be done without note and interest, and a decree for the forcl0.3- showing some valid legal or equitable ground ure of the mortgage. Mrs. McCloskey after. for it. There was no error. wards died, leaving the judgment unpaid; and The judgment is affirmeda
Llewellyn J. COPPAGE, Receiver of the Wil. I was made before the organization of the corliamson Straw Stacker Co., Appt., poration was fully effected.
The Statute requires that the persons who Miltop H. HUTTON.
desire to organize a corporation shall “make,
sign and acknowledge before some officer capa(...... Ind.......)
ble to take acknowledgment of deeds, a certi.
ficate in writing," setting forth tberein certain The agreement of one who signs arti. enumerated things. Rev. Stat. § 3851.
cles of association for the formation of a The contention of the appellee is that the corporation to take stock therein does not be- pron.ise is not effective because the complaint come enforceable until he has acknowledged the show's tbat only seven of the eigbty-three articles as required by 83851, Rev. Stat.
signers acknowledged the certificate. It seems
quite clear under the decision of tbis court in (April 12, 1800.)
Indianapolis Furnace & Min. Co. v. Ulerkimer,
46 Iud. 142, ibat the mere signing of the paper the Circuit Court for Montgomery County and that, in order to make valid and effective in favor of defendant in an action to recover articles of association against all who sign, all the amount due upon an alleged stock subscrip. must acknowledge them as the Statule requires. tion. Affirmed.
Here it affirmatively appears that seven only The case sufficiently appears in the opinion. of the signers acknowledged the execution of
Messrs. Kennedy & Kennedy and Ris- the instrument, and it cannot be inferred that tine & Ristine for appellant.
those who did not acknowledge it remained Me8818. Wright & Seller for appellee. bound by its terms. As to them, the instru
ment was incomplete, and it is quile well Elliott, J., delivered the opinion of the selled that an incomplete subscription cannot court:
be enforced. Dutchess & C. O, R. 00. v. Mab The appellant sues as the receiver of an bett, 58 N. Y. 397; Reed v. Richmond Street R. Insolvent corporation, and seeks to recover a to. 50 Ind. 342; Richmond Street R. Co. v. subscription which he alleges tbe appellee made Reed, 83 Ind. 9; Williamson v. Kokomo bldg. to the capital stock of the corporation. It is & L. F. A880. 89 Ind. 389. alleged that the appellee, with others, signed It is, bowever, argued by appellant's counsel articles of association and tb agreed to that the complaint does affirmatively show that take two shares of the capital stock, and pay the corporation was orgavized, but this does therefor $100.
pot meet the question, for it may well be that The introductory clause of the articles of it was organized with the appellee as a stock. association rearls tbus: “We, the undersigned, bolder. The fact that be did not acknowledge agree to take the stock in the amount set oppo- tbe instrument as the law requires, implies that site our names, in a company to be organized for he did not become a stockholder, and there is manufacturing and selling the Williamson nothing in the complaint which rebuts or Straw Stacker." There were eighty-three sigo- opposes this implication. Il devolved upon ers and seven of them acknowledged the execu- the plaintiff to remove the inference if he tion of the articles of association before a votary could. As the appellee did not acknowledge public and the instrument was duly recorded. the instrument as the law requires, be did It is also alleged that $8,000 of stock was sub. not become a stockholder, and if he were scribed; that the company was duly organized insisting that he was entitled to the number and board of directors elected.
of shares set opposite bis name, it is quite clear There can be no doubt, under the authori. that the corporation might successfully resist tics, that a valid subscription to the capital bis claim; since it is obvious that only those stock of a corporation may be made by signing who acknowledged the articles of association ibe preliminary articles. Such a subscription as ihe law requires can successfully insist upon becomes entorceable upon the perfection of the their right to stock. If the appellee cannot be corporate organization according to law, under regarded as a stockholder, then it seems quite tbe articles of association. Miller v. Wild Cat clear that he did not bind himself by simply Gravel Road Co. 52 Ind. 51; Multon v. Cluy- signing the articles of association. ton, 54 Iowa, 425; Phænix Warehousing Co. v. Whether a good complaint can be framed is Budyer, 67 N. Y. 294; Cravens v. Eugie Cotton not the question before us, for the only ques Mills Co, 120 Ind. 6.
tion presented by the record is as to the suflj. If the promise of the appellee is not binding ciency of the complaint as it is written. it must be for some other reason than that it Judgment affirmed,
NOTE.-Creation of corporation.
The omission to file with the circuit clerk the The mere siguing of articles of association does certificate of organization of a special company by not create a corporation. The subscribers nrust the holders of the special stock of the company also sign and acknowledge the certificate of incor- incorporated under a special Act authorizing the poration and cuuse it to be recorded. Indianapolis same can be taken advantage of by the State alone; Furnace & Min. Co. v. Herkimer, 46 Ind. 142. and a suit cannot be maintained against a stock
A corporation bas no existence until the date of bolder, as partner, upon a corporate liability of the the filing of its charter; and persons named therein company. Mo. Gen. Stat. 1865, and Rev. Stat. 1855, as directors for the first year assume or incur no chap. 34, 87, do not apply to such corporation. obligatious until it is filed. St. Louis, Ft. S. & W. Granby M. & S. Co. V. Richards, 14 West. Rep. 760 R. Co. v. lieroun, 37 Kun. 806.
95 Mo. 106
NEW YORK COURT OF APPEALS.
APPEAL he plaintifte from a judgment of the York: 203.oues & S. 198, 12 Cent. Rep. 60, 109
John DANAHER, Admr., etc., of Thomas I nevertheless, if their ignorance was owing to P. Danaber, Deceased, Appt., an omission of the duty of inspection and of
the degree of diligence whicb might reason. CITY OF BROOKLYN, Respt.
ably be expected under all circumstances, the
opportunity of knowledge stands for the pur(....N. Y.....)
poses of the case as actual knowledge, and the
City is equally chargeable as if express notice 1. A city is not liable for injuries had been actually proven. caused by the drinking of water from Kunz v. Troy, 6 Cent. Rep. 493, 104 N. Y. free public wells where neither failure on its part 349. See also McCarthy v. Syracuse, 46 N. to keep the wells properly cleaned out nor notice Y. 194; Brusso v. Buffulo, 90 N. Y. 619; Jones to it that the water tberein had become impure is
v New Haven, 34 Conn. 6; Rehberg v. Nero shown, and there were no circumstances to cause York, 91 N. Y. 133; Fort Worth v. Crairjord, suspicion as to the purity of the water, and a suf. 64 Tex. 2; 2,53 Am. Rep. 753; Vosper v. Nero ficient supply of pure water was furnished from York, 17 Jones & S. 296; Requa v. Rochester,
otber sources for the use of its inhabitants. 2. A city is not bound to make a chemi- 45 N. Y. 129; Barton v. Syracuse, 36 N. Y.
cal examination of the water or free public 54; Torld v. Troy, 61 N. Y. 60ti; State v. l'ort. wells tor the purpose of ascertaining whether or land, 74 Me. 203. 43 Ain. Rep. 5-6: Chicago v. not it is pure and wholesome where it has no no- Major, 18 M. 349; Vunderslice v. Philadelphin, tice that the water is up wholesome and furnishes 103 Pa. 102; Addison, Toris, pp. 131., 1313; a public supply of running water in addition to Wharton, Neg. S$ 291, 963, 965; Deyme v. Carathe wells.
toga Springs, 3 Thomp. & C. 504, 505; Morris
toun v. Moyer, 67 Pa. 355; Donaldson v. Bos (February 25, 1890.)
ton, 16 Gray, 508; Howard Co. v. Legg, 110 Ind.
479; l'ost v. Clark, 35 Conn. 312; llunt v. Nero Term of Second N. Y. 134. Depariment, affirming a judgment of the Milnes v. Huddersfield, L. R. 10 Q. B. Div. King's Circuit dismissing the complaint in an 124; on appeal, L. R. 12 Q. B. Div. 443, is on all action to recover damages for the death of tours with the present case. plaintiff's intestate, which was alleged to have See also Chapman v. Rochester, 1 L. R. A. resulted froin the use of up wholesome water 296, 110 N. Y. 273. degligently furnished by defendant. Affirmed. The City is chargeable with notice of the
The facts sulliciently appear in the opivion. operations of the patural law of decay. It
Messrs. Franklin M. Danaher and was its duty to anticipate dilapilation and deRnger A. Pryor, for appellant:
cay; to inspect the well, and call to 118 assist Tlie City of Brooklyn furnishes drinking ance those whose skill would have enabled it water to its inbabitants in its private as dis to ascertain its condition. tinguished from its public capacity, and is Vosper V. New York, 17 Jones & S. 296; liable for a failure to use its power well or for Howard Co. v. Legg, supra; llorarl (o. v. an injury caused by using it badly, and for Legg, 9.3 Ind. 528; Indianapolis v. Scott, 72 Ind. degligence, the same as an individual under 197; Rapho v. Moore, 68 Pa. 408; 'one's v. New similar circuimsirences.
llaven. 34 Conn. 13; Norristoron v. Moycr, 67 Dillon, Mun. Corp. 3d ed. § 58; 4 Wait, Act. Pa. 355, approved in Ilume v. Nern York, 74 N. and Def. 596-615; Duiley v. New York, 3 Ilu, Y. 273, and in Rehberg v. Kero York, 91 N.Y. 531, approved and followed in Ro serelt v. 145, See also Noyes v. Garuner, 1 L. R. A. Druper, 23 N. Y. 325, and People v. Batchellor, 351, 147 Mass. 505. 53 N. Y. 141; McAvoy v. New York, 51 How, The City ought to have foreseen that an imPr. 245; See also Benson v. New York, 10 pure condition of its drinking water miglit ocBarb. 223, 2:35; Fleming v. Suspension Bridge, cur, and the omission to provide against it is 92 N. Y. 372; People v. Civil Service of N. Y. actionable negligence, 17 Alb. N. C. 64; Britton v. New York, 21 Uow. Lojtus v. Union Ferry Co. 84 N. Y. 460. Pr. 253; Vilhau v. Sharp, 15 Barb. 193; Louber The water in the well baving becoine imV. New York, 7 Abb. Pr. 251; Rummey v. Gedney, pure, poisonous and dangerous to buman life 57 Ilow. Pr. 221; Western Sid. Fund Society v. and healih, it was a public nuisance, and the Puladelphia, 31 Pa. 183; People v. Ilurlbut, muvicipality is liable for all damages sustained 24 Mich. 44; l'eople v. Detroit, 28 Mich. 228; by reason of its existence, in short, for tbe Livingston v. l'ippin, 31 Ala. 5 12; Rome v. wrongful act of maintaining it irrespective of Calot, 28 Ga. 50; Hello v. Atlanta, 43 Ga. 67; any question of negligence or potice. Mcknight v. Nero Orleans, 24 La. Aun. 412; Sharoneetoion v. Mason, 82 III. 337; Hamil. Grant v. Daren rort, 36 Iowa, 3,6; Dale v. ton v. Columbus, 52 Ga. 435; Ncrins v. Peoria, lloughton, 8 Mich. 454; Indianapolis v. Indi- 41 III. 502. See also People v. Albany, 11 anapolis Gas Co. 66 Ind. 396; San Francisco Gas Wend. 539; Wood, Nuisanice, SS 749, 784, p. Co. v. Sun lirancisc., 9 Cal. 453; Bigelow v. 833; Gould, Waters, Sš 212, 545; Mills v. Hall, Randolph, 14 Grav, 543; Oliver v. Worcester, 9 Wend. 315; Chapinan v. Rochester, 1 L. R. 102 Mass. 500; Erstman v. Meredith, 36 N. II. A. 296, 110 N. Y. 273; Dillon, Mun. Corp. 3d 284; Bryd v. Insurance Patrol, 5 Cent. Rep. ed. $ 1048, note; 4 Wait, Act. and Def. 765; 233, 113 Pa. 269; Jones v. Nero llaven, 34 Coon. Addison, Torts, 1315; Wharton, Neg. $ $ 187, 1; Detroit v. (urry. 9 Mich. 165.
259, 265; Bronder v. New York, 3 Barb. 254, If the city authoritics bad do actual notice, The defendaut is liable in tort for furnishing
See also 43 L. R. A. 117; 46 L. R. A. 036; 48 L. R. A. 331.
impure and poisonous drinking water, upon the soil, reached the bottom of the well, and the ground of a violated or neglected duty that the water, upon the earth, or in passing voluntarily assumed, irrespective of any ques- tbrough the earıb, came in contact with the tion of negligence or notice, or of any privity unclean and deleterious substances which renof contract between the parties.
dered it impure and unwbolesome. The wa Reg. v. Srindall, 2 Car. & K. 232. See also ter was limpid, cold and agreeable to the Norton v. Sewall, 106 Mass. 143; Bishop v. taste. Its impurity could not be detected by Weber, 139 Mass. 417; Gilbert v. Hoffman, 66 drinking it, and its dangerous character could Iowa, 205; Fitzpatrick v. Garrisons & W. P. only be discerned by a careful chemical analy. Ferry Co. 49 Hun, 238.
sis. This water was pot furnished for a com. The City erected and maintained the pump pensation paid for its use, and so there was no and assumed tbe duty of providing for the contract relation between tbe City and those health, safety and protection ofis citizens who who used it. The well was for public, gratudrank of this water, and is liable for any in- itous use; and hence nothing that was said or juries sustained by such person by reason of intimated in Milnes v. lluddersfield, L. R. 10 the poisonous condition of ibe water, irrespec- Q. B. Div. 124, and L. R. 12 Q. B. Div. 443, tive of any question of potice or negligence. has any pertinency here.
Archer v. New York, V. 4. & ii. R. Co. 9 The City was not an insurer of the quality Cent. Rep. 233, 106 N. Y. 589; Turner v. Nero of the water, and bound, under all circumburgh, Cent. Rep. 330, 109 N. Y. 301; Jetter stances, to keep it pure and wbolesome. This V. Acro York & 11. R Co. 2 Abb App. Dec. 458; is not claimed.' It owned this well as it owned Weston . Neu York El. R. Co. 73 N. Y. 595; iis other property kept for public use, such as Brasscll v. New York Cent. £ 1. R. R. Co. 84 streets, parks and public buildings, and owed N Y. 246; Ner8014 v New York Cent. R. Co. the duty of reasonable diligence lo care for it 29 N. Y. 383, Chaffee v. Boston & L. R. Co. as it was bound to care for such other prop104 Mass. 108, Bru880 v. Bufalo, 90 N. Y. erty. Its liability for unwholesome water in 679, McGuire v. Since, 91 N. Y. 303; Toda any of its public wells must rest upon degliv. Troy, 61 N. Y. 510; Barton v. Syracuse, 36 gence, and hence we are brought to the quesN. Y. 55; ( 'hicago Major, 18 II. 349; Haz- tion, Was there any proof of negligence im. man v. Bloboken, L. & 1. Co. 50 N. Y. 60; putable to the City? It is not claimed that the Gilbert v. Hoftian and Bishop v. Weber, City bad any notice of the unwbolesome charsu pra; Horrard (0 v. Legg, 9 West. Rep. 212, acier of this water prior to the death of plain110 Ind 479; Stutt v. Syphrett, 27 S. C. 29; Liff's intestate; but the claim is that by reason. Barry v Terkildsen, 72 Cal. 254; Dorland v. able diligence it could bave bad notice, and New York Cent. & H. R. R. Co. 19 N. Y. Week. bence that notice must be imputed to it. This Dig. 76 Barber v. Abendroth, 20 N. Y. Week. well bad existed for many years, and its water Dig. 7; McGuire v. Spence, 16 N. Y. Week. bad been extensively used by persons in the Dig 220, Jennings v. Van Schaick, 11 Cent. neighborhood; and ibere is no proof whatever Rep. 317, 108 N 1. 530, 37 Alb. L. J. 292: lbat prior to the monih of August, 1882, it Indlicna, B & W. R. Co. v. Barnhart, 13 bad caused injury to anyone, or that there was Wist Rep 425. 115 Ind. 399; Marseilles v. the least suspicion by anyone that it was unHowland. 14 West. Rep. 564, 124 III. 547; Re- wholesome. qua v. Rochester, 45 N. Y. 134; Fitzpatrick v. Several persons were called as witnesses by Garrison8 d W. P. Ferry Co. supra.
the plaintiff, who testified that they became Mr. Almet F. Jenks for respondent. sick from drinking the water of this well in
the early part of August, 1882. It is inferable Earl, J., delivered the opinion of the from the evidence that the same persons drank
the water previously with impunity. The We entertain no doubt that this well in De plaintiff bad four sons. Three of them drank Kalb Avenue was a public well, belonging to ihe water in the early part of August and bethe defendant, and under its control, and i hat came very sick, two of tbem dying. They the water of the well was in August, 1882, un- bad previously, for years, drank it without in. wholesome, and dangerous to the bealth of jury. The fourth son drank it down to about such persons as should drink thereof; and we ibe 1st of August, and then, in consequence will assume, although we would hold so with of bis absence from the City. he ceased to some besitation, that tbe death of plaintiff's drink it; and he did not become sick. The intestate was cau' ed by drinking of the water; inferonce therefore is, so far »s there is any and yet, we think, plaintiff was properly proof upon wbich base it, that the water nonsuited at the trial. Tbere is no claim that was wholesome—at least not dangerous, and the well or pump was improperly constructed, not so impure as to cause sickness-down to or out of repair, or that the water became un- the 1st of August. In view of these facts, it wholesome from any defect in the well or certainly cannot be said that there is any proof pump, or from any external exposure wbich that the water was dangerous before the time could by any reasonable care bave been avoid it is shown to bave caused any injury. The ed. It does not appear that the City, or any plaintiff, claiming that the waier of this well of its officers, or, in fact, that any person, did bad for a long time been impure and danger. anything to render the water impure. Norous, should bave given some proof to main. does it aprear that anything could bave been tain his claim; and, if it a ere well founded, it done to purify it, or prevent its impurity. cannot be doubted that the proof would have The theory of ibc plaintiff, as developed upon been readily obtainable, as many persons must the trial, was ibat this well was supplied by bave used the water for many years. So, water which fell upon the surface of tbe sur while there is no proof that, during any conrounding earth, and, by percolation through | siderable time prior to the drinking of this