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on certain specified terms, in a particular manner and for a specified price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. Brackett v. Lubke, 4 Allen, 138; Robinson v. Webb, 11 Bush (Ky.), 464. And where work is being done under contract, if there is any negligence, the contractors, or those employed by them are alone responsible. Id.; Gardner v. Bennett, 6 Jones & Sp. (N. Y.) 197. Thus, where a city employed a contractor to grade a street, and in performing his contract he threw dirt, stone, etc., on a lot abutting the street, it was held that the city was not liable to the lot-holder for the injury. Reed v. Alleghany City, 79 Penn. St. 300. See, also, Wray v. Evans, 80 id. 102. And the rule was applied where a house, in being raised up for an addition beneath, fell upon the house of an adjoining owner. Conners v. Hennessey, 112 Mase. 96. And see Wood v. School District, 44 Iowa, 27. But, on the other hand, if work is done under a general employment, and it is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. Id.; Forsyth v. Hooper, 11 Allen, 419. And see ante, tit. Master and Servant. So, if A contract with B to do the carpenter work of a building at a fixed price, and to superintend the other work on the building, employing the hands and certifying the bills to B, who pays them, and A is guilty of negligence in not sufficiently guarding a pit or vault, opened in the sidewalk of the premises on which the building is erected, B will be responsible for damage sustained by a person falling into the opening, in consequence of such negligence. If, however, the negligence had been that of the carpenters, working under A, the rule of responsibility would have been different, and A would have been held liable. Samyn v. McClosky, 2 Ohio St. 536. See Clare v. National City Bank, 8 Jones & Sp. (N. Y.) 104.

A tenant does not lose possession in any sense that would impair his own rights, merely because a person enters under the direction of the landlord to make repairs or improvements; and if, during the progress of such repairs or improvements, the tenant receives personal injuries by reason of the negligent manner in which they were being made, the party whose negligence occasioned the injury must respond in damages. Lamparter v. Wallbaum, 45 Ill. 444. And if an employee of such tenant, while in the line of his duty as such, receives injuries from such negligence on the part of the person doing the work, the latter must respond to him also in damages. Id.

The owner of a building, to the chimney of which a gas company has, without the owner's consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, may be liable for the damages so caused; and if, when so liable, he pays the damage, he has an action against the company for indemnity. Gray v. Boston Gas-Light Co., 114 Mass. 149; S. C., 19 Am. Rep. 324.

Where a servant of a mining company was killed by the falling of a rock from the roof of a common gangway in a coal mine, and it was sought to charge the company with negligence in not keeping the roof in a safe condition, it was held that notice to the superintendent, of the dangerous situation of the roof, was notice to the company; and that, if this was long enough before the accident to have given time to repair the same, was sufficient to fix negligence upon the company. Quincy Coal Co. v. Hood, 77 Ill. 68. See Deppe v. Chicago, etc., R. R. Co., 38 Iowa, 592.

ARTICLE VI.

DAMAGES AS A REMEDY.

Section 1. In general. See, on this subject, ante, Vol. 2, 440, et seq. As a general rule, a person is answerable for the consequences of his fault only so far as they are natural and proximate, and may, therefore, be foreseen by ordinary forecaste; and not for those arising from a conjunction of his fault with circumstances of an extraordinary nature. Fairbanks v. Kerr, 70 Penn. St. 86; 10 Am. Rep. 664. And see Cuff v. Newark, etc., R. R. Co., 35 N. J. Law, 17; 10 Am. Rep. 205; Pollett v. Long, 56 N. Y. (11 Sick.) 200. It is frequently difficult to determine the amount of damage sustained; and the rule is, that where a wrong has been committed, the wrong-doer must suffer from the impossibility of accurately ascertaining the amount of damage. If, therefore, the evidence seems equally balanced between two or more amounts, he must pay the larger sum. Leeds v. Amherst, 20

Beav. 239.

A recovery is not confined to the amount of damages sustained previous to the commencement of the action, but it may also include damages suffered up to the verdict (see Dailey v. Dismal Swamp Canal Co., 2 Ired. [N. C.] L. 222), and those which it is reasonably certain that the plaintiff will suffer in the future. Peoria Bridge Association v. Loomis, 20 Ill. 236; Kerr v. Forgue, 54 id. 482; S. C., 5 Am. Rep. 146; Curtis v. Rochester, etc., R. R. Co., 18 N. Y. (4 Smith) 534. But an injured party is not entitled to recover for damages which he might have avoided by the use of slight care and diligence, after becomVOL. IV.-90

ing aware of the injury complained of (Worth v. Edmonds, 52 Barb. 40; Illinois, etc., R. R. Co. v. Finnigan, 21 Ill. 646); nor for damages which, at a trifling expense or by reasonable exertions, he might have prevented. Douglas v. Stephens, 18 Mo. 362. And it has been held that the plaintiff cannot recover for damage which he might have avoided by the use of ordinary care and diligence. State v. Powell, 44 Mo. 436. And see Sherman v. Fall River Iron Works, 2 Allen, 524. But see Chase v. New York, etc., R. R. Co., 24 Barb. 273; Lawrence v. Housatonic R. R. Co., 29 Conn. 390. See, as to allowance for the plaintiff's loss of profits, ante, Vol. 2, 443, 469.

The rule of damages generally adopted in cases of negligent injury to real property is to allow the difference between the value of the plaintiff's premises before the injury happened, and the value immediately after the injury, taking into account only the damages which had resulted from the defendant's acts. Chase v. New York, etc., R. R. Co., 24 Barb. 273; McGuire v. Grant, 1 Dutch. (N. J.) 356. The time of estimating the damage is when the injury is complete. Schuyl kill Navigation Co. v. Farr, 4 Watts & Serg. 362. The rule as stated is not, however, universally applied, and it is held, that if the thing destroyed, although it is part of the realty, has a value which can be accurately measured and ascertained without reference to the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing thus destroyed, and not for the difference in the value of the land before and after such destruction. Whitbeck v. New York Central R. R. Co., 36 Barb. 644. And see Richardson v. Northrup, 66 id. 85; Stanton v. Pritchard, 4 Hun (N. Y.), 266; Winchester v. Craig, 33 Mich. 205; Chicago, etc., R. R. Co. v. Ward, 16 Ill. 522. To ascertain the damages, in an action for injury to a well by rendering the water impure, the cost of furnishing water to the family, having regard to the quality and quantity, may be taken into account in the estimate, also the difference in value of the property, owing to the erection of gas or other offensive structures in its vicinity. Ottawa Gas-Light Co. v. Graham, 28 Ill. 73.

In consequence of a railway embankment, the flood waters of a river were pent up and caused to flow over land of the plaintiff, doing injury to a certain amount. Had the embankment not been constructed, the waters would have flowed a different way, but would have reached the plaintiff's land, and would have done damage to a less amount, and it was held that the measure of damages recoverable by the plaintiff against the railway company was the difference only between the two amounts. Workman v. Great Northern Railway Co., 32 L. J. (Q. B.) 279.

If goods are wholly lost or destroyed through negligence, the owner is entitled to recover their full value at the time of such loss or destruction. If the goods are partially injured, and the party seeks redress for the qualified damage, the measure should be in like proportion. Smith v. Griffith, 3 Hill, 333. And see Edwards v. Beebe, 48 Barb. 106; Wise v. Freshly, 3 McCord (S. C.), 547.

Where a telegraph company receives a message for transmission, without notice or information, either from the contents of the message or otherwise, of any fact indicating that extraordinary care or speed in its dispatch or delivery is important or expected, or that extraordinary or special damages will result from any neglect or want of care, or accuracy in transmitting it, the measure of damages for non-delivery is limited to such damage as results from the ordinary and obvious purpose of the contract. Baldwin v. United States Tel. Co., 45 N. Y. (6 Hand) 744; S. C., 6 Am. Rep. 165; United States Tel. Co. v. Gildersleve, 29 Md. 232. In an action for the non-delivery of a telegram ordering goods, the plaintiff may recover the money paid for transmitting the message, any advance in freight, and any expenses incurred in consequence of the failure of the message, but he cannot recover contingent or anticipated profits. West. Union Tel. Co. v. Graham, 1 Col. T. 230; S. C., 9 Am. Rep. 136. And see Squire v. West. Union Tel. Co., 98 Mass. 232; Leonard v. New York Tel. Co., 41 N. Y. (2 Hand) 565; S. C., 1 Am. Rep. 446. For the non-delivery of a telegram directing the purchase of stock, the telegraph company was held liable for the difference between the price at the time the message ought to have been delivered, and the price at which the stock was purchased upon an order by mail. United States Tel. Co. v. Wenger, 55 Penn. St. 262. See Rittenhouse v. Independent Line of Telegraph, 44 N. Y. (5 Hand) 263; S. C., 4 Am. Rep. 673.

Where the amount which a telegraph company shall pay as a penalty for a failure to comply with requirements of law, is fixed by statute, the company cannot change the degree or measure of the statutory liability, by the adoption of rules and regulations. Nor will paying back the amount paid for sending a dispatch, and the acceptance of the same, unless it is agreed to be accepted in full of all that the party has a right to recover by virtue of the statute, bar an action for the full penalty. Western Union Tel. Co. v. Buchanan, 35 Ind. 429; 9 Am. Rep. 744.

The rule so carefully maintained and guarded in actions upon contracts, and for tortious injuries to property, is incapable of being applied where the injury is to the person, such injuries being without precise pecuniary measure. The law has accordingly, in cases of injury

to the person, committed the determination of the amount of damages to be awarded, to the experience and good sense of jurors. And when the verdict rendered by them may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment on their part, the policy of the courts is, and necessarily must be, not to interfere with their conclusion. Walker v. Erie Railway Co., 63 Barb. 260. See Heil v. Glanding, 42 Penn. St. 493. In an action for a negligent injury to the person, the plaintiff may recover for loss of time and expense incurred, for the pain and suffering undergone, and for permanent injuries sustained, impairing future usefulness. Beardsley v. Swann, 4 McLean (C. C.), 333; Wade v. Leroy, 20 How. (U. S.) 34; Klein v. Jewett, 26 N. J. Eq. 474; Stockton v. Frey, 4 Gill (Md.), 406; Masters v. Warren, 27 Conn. 293; Pennsylvania, etc., Land Co. v. Graham, 63 Penn. St. 290; S. C., 3 Am. Rep. 549; Canning v. Williamstown, 1 Cush. 451. It has, however, been held that the jury in estimating damages cannot consider the "character" of the plaintiff, nor his pain of mind, aside and distinct from his bodily suffering. Johnson v. Wells, 6 Nev. 224; S. C., 3 Am. Rep. 245. Nor are the damages to be estimated by, or proportioned to, the wealth of the defendant. Moody v. Osgood, 50 Barb. 628. And indirect proof of the defendant's wealth is just as inadmissible as direct proof, and for the same reasons. Id. So, in an action by a woman against a railway company for personal injuries, the death of her husband by the same cause, or the fact that she has children dependent upon her for support, is inadmissible in evidence to increase the damages. Shaw v. Boston, etc., R. R. Co., 8 Gray, 45. See, also, Stockton v. Frey, 4 Gill (Md.), 406. And in an action to recover damages for personal injuries by which the plaintiff is prevented from transacting his accustomed business, where the business is of such a nature that the profits therein are uncertain, proof of his past profits is held to be incompetent. Masterton v. Village of Mount Vernon, 58 N. Y. (13 Sick.) 391. See Walker v. Erie Railway Co., 63 Barb. 260; McLaughlin v. Corry, 77 Penn. St. 109; 18 Am. Rep. 432. But in an action against a physician for causing an injury to the wife by unskillful and careless treatment in delivering her of a child, damages may be given for the increased expense of employing another physician to effect a cure (Leighton v. Sargent, 31 N. H. 119); and also for the mental suffering of the wife caused by the destruction of the child. Smith v. Overby, 30 Ga. 241. See ante, Vol. 2, 444, et seq.

§ 2. Exemplary damages. See ante, Vol. 2, 446, et seq. In cases of simple negligence, the rule governing the measure of damages is to allow the actual damages. And it has been held that the allowance

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