LUSBY 11. ATCHISON, T;;I:
so' F.
BY.
co.
181
LUSBY
v.
ATCHISON,
T. & S. F. Ry. Co.
(Oircuit Oourt, D. Ootorado. January 21, 1890.)
1.
CARRIERS-INJURIES TO PASSENGERS-PIIOVINCE OlP JURY.
In an action against a ra:Uroad company, where plaintifr testifies that, as the freight train on which he was a.passeuger neared a station, he arose to go and look out, when a sudden jerking threw hiindown, and that he lay in pain during the. switching at the station, and sufrered greatly from the jerking incident thereto, verdict in his favor will not be set.aside.on account of thl'! strength of defendant's evidence that the injury oCcurred as they were preparing to leave and not as they approached the station, as the weight of the evidence and credibility of the wit.: nesses are for the jury. A passenger in the caboose of a train, in getting iIp and starting to go and look out on the sounding ofa whistle mdicating approach to a station, is not guilty ofcontributory negligence. in the abseuce of proof. that the jerking. by which he, was thrown down was so usual that he IIhouId have anticipated it..
So
SAME-CONTRIBUTORY NEGLIGENCE.
At La-w:. On motion for new trial. Petersim « Thomas, for plaintiff. C.' E. Gast and Wells, McNeal « Taylor, for defendant· . Before PHILIPS and HALLETT, JJ.. .' 'PHILIPS, J. This is an aotion for personal injuries sustained by the plaintiff while a passenger on one of defendant's freight trains running from Pueblo, Colo., to the town of Coolidge, in the state of Kansas.· The case was 'tried by a j my, before HAT.LETT, J. Verdict for plaintiff. The case now stands on motion for new trial; and, by request of Judge HALLETT, I Sat with him on the hearing of this motion. Not having· time and opportunity, while holding oourtat Denver, to oonfer with him respecting the motion, at his request I submit for his consideration the views entertained by me respecting the merits olthe motion. The facts of the case, about which there is little controversy, are, briefly, as follows: The plaintiff, aged about 60 years, had some prior to the accident been in defendant's employ ·at its train yards at Pueblo as a machinist, and had thereby become acquainted with the conductor and trainmen in charge of the freight train in question. He was not, however, so in the employ of the defendal1t at the time of the' injury. On the 12th day of July, 1885, it being Sunday, he applied to the conductor in charge of a freight train on defendant's road to be car· ried as a "dead-head" from Pueblo to Coolidge, and was admitted by the' conductor as a passenger on this train; The eVidence showed that de· fendant was in the habit of carrying' passengers in the caboose uSli'ally attached to such freight trains. This freight train was composed of about· 4'6 freight-cars, with appliances connected 'with only it srnall portion of the fremt cars; 'On the other cars there were the customary hlJ,nd.brakes, and there·weTe brakemen for their operation.' There was. <lne other passenger in the caboose with the plaintiff. The plaintiff's testimony, in SUbstance; was that, as this train approached the railroad staiion called Blackwell, the cars whistled the usual signal for approl!-ching a .railroad station; ,whereupon the plaintiff left his' seat, aildstartetl to the '
rear door of the caboose, for the purpose of looking out to see the station had "gotten upon his or town which they were feet, and started -towards' the door, the car made a sudden and violent stop, which threw him 'backward, in'thedirection the 'car was going, feet, and fall,ing in the door with such violence as to carry him of the partition separating the front and tear parts of the,caboose. The his hijR,:ahd cause great, if not permafall was So 'violent as to nent, :injury. ;!The evidenoe on thepnr.t, the defendant f.endedto show that gone th 7station and stopped, anc1,d,one someswltchlOg, ta]ung on another frelght-car, and occurred just as the train started out of the station, and 11iat the sudden Jerking from the fact brakes were fastened upon the tender; that is, the air in' 'some way, from exclusion by pressure in the cylhider,'hal! fastened ,:the the wheels, and the engineer stopped for the purpose of taking them off. The engineer testified that it was necessary to stop suddenly for' that ,purpose. ,On this latter branch of the case, the court in its charge to the jury i!lstruoted that if the injury occurred at this Iltnd under such circumstances,-that is, if it was necessary, in the judgmcmt of.tb.e.engineer, thus to suddenly stop and unfasten the brakes from the wheels,-the plaintiff could not recover. trial. insist Counsel for defendant,on the hearing ,of thEl motion as the ,basis of its! llpplication for reheating: Fir8t" upon two the weight ,of o,verwhelminglyin favor the proposition that ,the injury oCQurt:ed, notus they approached the station as daimed by the plaintiff"bu,tjust as they were preparing to leave the sta,.., tioJi, and in the manner te,$titied to on of defendant; that the court Qught not toperr,nit the verdict tosw..w!.; and,8econd, that the plaintiff's own evidenceshQws that he. was. guilty, ofsuch contributory negligence n<>Ho recover. . ,. on his part thl;lt . U p<:m a careful reading of all the ,as taken at the trial by the stenographer, thEt;court would have been justified in taking the case from t4e jury on the first proposition. Certainly , when tlJ.e plaintiff rested, there was not such:evid,ence, of this fact as would .have w:itqqrawal from ,the jury. '. The genernlrule 'of practice is. Justified t1J.at the cour(may take the ,caSe from the jury at the conclusion of the its opinion, ,theeV'idence to be plaintiff's ev:\dence, wheI;l" no cause ohc,tion is sQQwll;but, :when the failure of the plaintiff's evidence,its credibility, case is. made tq, dependupollthe we;ght, and.proba,tive q lleetions for the jury. Woods' A8signee M.a. Ho, 116; 00'1,27 Mo. App·. Where,. hqwever, defendanVs .is so ovetwhelming and in ,nature a.nd charl'loc.teJ< ,as to ve ,no ground for variant C()n<;lusions in·, t1:le. ·minds of, reaaonable; JOeQ. thecour.t, 'may direct the j!iry tp find ,So the right. of trial by jury sl1itorn ,elltitled,tP, opinion.of the. jury.on disputed. of the weight:ofevidence, and facts; for . 'rhe <lour! tp the la.w,andthe jury to the .isa His crew·'
of
or
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188
bility; a.nd the weight to be attached to his testimony, are essentially questions forthejury. It may be conceded 'that the evidence on the part of thedefendent quite clearly shows that the'injury in question occurred after the train had gone into the station of Blackwell; but the plaintiff's evidence $\1I3t as clearly shows that it occurred before the station was reached, 'and was the result of the manner of slowing up the train on its approach thereto. And there are some facts and circumstances testified to by the plaintiff, which, if they existed, very strongly corroborate his the time and place of the accident. He testifies, inter alia, thll.tjust after he fell he was picked up by the other passenger, and laid upon ,the sen.t or bench in the car, and that he lay there some 20 minutes, until they made the second start. He also testified that, while he was so. lying prostrate and 'helpless upon this bench, the cars were doing some switching or making some movements in the switch.yards, and he made these significant statements: "I WM lying on the bench, sufl'eringwith intense pain. When they hooked 011'. I remarked to the rna" that picked me up: 'My God, they. will something.. * * kill me yet.',; They were. theneitber starting off, I knowtlley were jerking things around pretty lively. I could not teU what they weredolrig. I was lying there in such intense pain I.could not' get up. Iknowevel'y 'jerk they gave me there. I was afraid they would jerk the life '. . ' out of me. " This would show that when the ,movements. and violent jerking occurred'about the switch yards, and when the tralnstarted off, the plain. tiff. had'rec,eived his injury. and was prostrated.'The jury, who looked upon arid:heard the witness, should be allowed to sily whether. they belieVed'liim or not. And this is the whole matter of this issut'. The' onlyremainingquestion to be considered is, as to whether the plaintiff'seHdence shows subh contributory negligence on his part as to make it the duty. of the courttQtake the caseftom the jury.' I know no .sounder or safer rule respecting this nnich.Itiooted questi<?n of contributorynegligence than that announced by courts of the highest char· "acter, as follows: . "Tlilereis that negligence is in manycase8ll. question of law to be , determ,ined from the facts agref'd or found by the jury. But where the facts in evidence may, in the jUdgment of sensible men, lead to very different coho (llus10nll,I\S to Whether they establish .want ofcare or contributory negligence, determine the question." Norton v. Itt· the jury ,.ner, 56 v. Stout, 17 Wall. 65.7. Theobservations ofthat eminent jurist, Chief Justice COOLEY, in RailwaiyOo. 'v,. Yam Steinburg,:17 Mich. 120, are entitled to respect: :'!'Waenthe jUdge decid'es that a \vantol due care is not shown, he :necessa. "r:ily:flxes in his oW,I;l.mindJbestandard of ordil1aryprudence. and,measuting out 9.f cQurt upon, hiS opinion of the plaiptifl') conduct by t4ll(t. what a reasonably prudl'ntmlln ought tohave,d9lle under the circumstances. his own opinion of what would as prudence aden nite rule of law. It is'quite pOSBi ble that if the same question of prudence were imbmitted1;o a jurycolleeted from the occupations of 8'oeiety, andperhaps;better competent ttl jUdge of LheOO'rnmon:opinion; he might find hilll ,as poopercare. ,The, next
*
i
:184
FEDERAL REPORTER,
vol. 41.
judge trying a sHnllar case may also be of a different opinion, and, because the case hold that to be a question of fact which. the first has ruled to be a question of law. * ** While there is any uncertainty, it reo mains a matter of fact for the consideration of the jury..' *. '" The diffi· cUlty in these pases of negligent injUries is that it very seldom happens that injuries are repeated under the same circumstances, and therefore no common standaluofconductbyprudentmen:becomesfixedorknown. '" '" * NegligEJDCe cannot be conclnsively established by a state of facts upon which fair· minded men. may well differ." It is insisted that because the plaintiff was upon a freight train that he must take notice of the mannaro! running and managing such trains; I and that he must have known fl'omobservation that such trains, on approaching stations, were liable to sudden jerks in the effort· to stop them, : which rendered it unsafe for one to get upon his feet on approaching a station; and that no one so getting upon his feet, from,any cause short of absolute necessity, could redover for being knocked from his feet by the halting of the train, no matter !how great the violence of the halt, , and. no Dlatter"how unnecessary its sUddenness. is always 'a relative It is aquestii:ln ofordinary care. !tis the caution . and vigilance which reasona{)l e Well eiercise under like circumstances. , Oayze:rv·. T,6.ylor, 10 Gray, 280j Pord v. Railway (1-0., '110 Mass. 256; Ji'lynn v. Railway Co., 78 Mo. 202. Or, as it is aptly expressed in Rail?;oad Co. v.Tet(1''!I, 8 OhiqSt. 581, it is "that degree of care which per":sons of ordintl,ry care are accustomed to use and employ, : under the,. same or similar circumstances, in order t(). conduct the enterprise in which they are engaged a safe and successful termination." It seems to me; as rather extreme doctrine to say that a passenger ca· , .boose attached' to a freigqt -OJ} its approach to a station, actuated , py the natura,l.· curiosity to .look ,out to observe the town and surround, ings, in the abse.nce of any windows permitting an outlook, would be heedless·of his own personal safety simply because he got upon his feet .under such circumstances; unless, it can be maintained that the habit ,. or'such cars on approaching' stations was to stop so suddenly and vio,lently as to it perilous for.a passenger to be feet at all at a time, and' that this fact was known to th\3 plaintiff. Although : this was a freight train, so long as the defendant admitted passengers ,upon it there wlts a mutual obligation imposed upon carrier and passen· ger.While a passenger enteringuI>0n such a vehicle of conveyance was subject to the inconvenience and perils ordinarily 'incident to the usual ,mRnnerof handling such trains,. yeHle had a right to presume that the agents and serVllnts in charge of this train would; also perform their duty ,towards hiJ;ll an,dthe public. "And it is not to be denounced as negligence for him to assume thab he 'is not exposed: toll. danger which can !only come to .through the of duty atld on the part .of ; another. ThIS, IS and reasonllble." Kellogg Railway Co., 26 WIS. " 223; Mobe:rly'y. Rmlway Co., 17 A:pp. 542. . '. The plaintiff had right, in in and about that train , to assume that the conductor and engineer and brakemen, knowing that they Jw.d on board passengers liable to injury from the manner of run·
LUSBY t1.ATCHISON, T. & S. F. BY.
roo
185'
ning and stopping such a train, would have their apprehension quick..; ened, their vigilance and caution increased, in proportion to the risk to the lives and limbs of its passengers. So that the plaintiff, as he claims, not reasonably anticipating on the sound of the whistle that the train in ' motion would make a violent lurch or movement backward, started to look out; and, while the law would exact of him an increased degrcl:l of care on thus getting to his feet, it seems to me that it is not able, on the now recognized limitation and application of the doctrine of contributory negligence, that it was per se negligent for him to get upon' his feet; and this, for two reasons: Because the evidence fails to show' that such SUdden and violent stopping, as occurred in going into the tion, was" so usual that a passenger, with no more knowledge than the plaintiff had, should be held to reasonably anticipate the shock; and cause plaintiff, in rising from his seat, had a right to rely upon the sumption that the engineer would do his duty by stopping his train so as not to produce unusual hazard, either by beginning the effort to slow up further back, or else calling to his aid the hand-brakes, which the evidence tends to show was not done in this case. The evidence of the conductor, Smith, to show that while he ha.d in his experience' witnessed as sudden and violent halt as claimed by the plaintiff, yet it was unusual, and could. have been largely prevented, or rendered essary, by gradually letting on the air, and calling to his assistance the hand-brakes. As before suggested, when the defendant admitted to passage on this caboose the plaintiff, it took upon itself the obligation which the law imposes upona carrier of passengers, which is the ex'erdse of "the utmost care and diligence of very cautious persons; and, of are responsible for any, even the slightest, neglect." Story, Bailm. § 601. "For the law will, in tenderness to human life and humanlimbs, hold the proprietors liable for the slightest negligence, and will compel them to repel, by satisfactory proofs, every imputation thereof." Id. § 601a; McKinney v. Neil, 1 McLean, 540; Stokes v. Salton.staU, :13 Pet. 181. In other words, it was bound to the exercise of a higher degree of care and caution, in running and stopping its train, towards a passenger on a freight train than if the cargo consisted (')f imate matter or live-stock. So that on approaching a station; knowing, as the engineer did, the composition of his train of 46 cars, with the airbrake working upon a few only of the forward cars, and the others dependent more or less upon the application of the hand-brakes, and the liability of such a train iIi slacking up to shock and disturb the rearmost car in which there were passengers, (although it may be conceded that more or less violence in halting was necessarily incident to the management of such a train,) the engineer was under obligation to use every precantion and means at his command to prevent the unnecessary exposure of the passengers to injury. Looking at the facts and circumstances attending this injury, it seems 10 me that it was peculiarly a question of fact for the court to submit to the jury, as it did in its charge, as to whether or not the plaintiff himin his conduct was heedless or negligent of the law of self-preserva.
tion; ,8pdunnecessarily. exposed himself to II known or apparent danger, or:whether or not the engineer and,otberservants of the defendant exercised the utmost vigilance and care the unnecessary exposure ofitsp:lssenger to injury. As said, in Railroad 00. v. Hazzard, 26 Ill. 373.:.387: ' ,/: .. The care requh'6d is not that the exercise of whi,ch accidents may happen; ,1l8,forexample, after a ,passenger is received on boa,rd he would be safer---Iess liable to accident-if ,Ip!lked up in the car, or chained to one of the seateor other fixture so as t9<lepriyehim of locomotion, moving from C/l.l' to car.. This would be the utmost degree of care caution; but thatis notreqrilred, so that the epithet · utmost ' must betaken' with some qualification..'... · InBoyc8v. 'anderson, 2 Pet. 150. ...' ,,*·Chief Justice MARSHALL held that the responsibility of the carrier(tn the instance of a 10ssof,neg1'oesin tranllportby,theupsetting of the boat's yawl) should be measure<\by law rather than that applicable to common goods. aod that the, rule of care isth/i;t of ordinary Care.-the care w.hlch all baUees' for hIre owe their employe1'. .. ' " ' . , -; '::', -' ' ., " ' ,! r·) " And this in Stokes v. Saltf)n8tqU, was afterwards extended so as ,to .make ithe, carrier liable, ,Jiifa; qls.aster was by, the least negligence or ,want of care the part of thedefendant.'t The c8seatbar distinguishable in: facts from. the Case in ,26,Ill., aupra, in this: that there the injury'occurr,ed by rei\son .of the passenger and carelessly tQ.8Nl standing on the platform ot the car as it halted, and the violeneein movement which res,ulted therefrom was occasioned by the engineer:ofthe train letting on alarge quantityor force qfsteam,which in was necessary to overQ9me the frogs and switches.: . In that case it was held that company wquld not be liableif.in. poipg so the engineer exercised a dia<;retion; and.it was,in :feciognition of. t.batJudge J:lA.LLETT, in l;1\S charge to the this case, t!mt the plaintiff could not recover, if, the,injv.ry resulted in the act frpm the, $ta.tion.,.40d ill force ,of steap1 in his J:u(}gment was to looseh. the' bin.ding brakes; whereas, the case at: 1?ar went to,tfle Jury t, toascerta,in wqether or nott.be defendant in stopping its train, on going into 'the stati'on did it in an unusual, ,unneeor negligent manner. 'In opinion, the peculiar state of proofs rellpecting. this ;l$sue well warratlted,tqe ,action of the court in .taking thereon the opinion of the triers of e f a c t . ; '.
my
tP
_) :The motion ,for a new trial Was overruled, and judgment entered on the, verdict,. · . ' . ' ; ,- , . ' /'
',.'
J., concurs. ',. ,
187 : 1"'-
OWENS ''U. PENNSYLVANtA
R. Co.
(Cilrcuit Court,E. D.Pe7insywanw. October 16,1889.)
L
RAILROAD COMPANIES-ACCIDENTS AT CROSSINGS-PRIVATE CROSSINGS.
It is the duty of those operating a train, when approaching a place where persons engaged in business upon the road are called upon to pass from one side of the track to the other,to give warning of its approach, though such place is not a public crQssinlt; and persons thus passing in the discharge of their duties cannot be regarded .merely all trespassers. . ';
2.
Tt is the duty of one about to oross a railroad track to select, if he can safely do sO, such a point as will enable him to see along the track, both ways ; and the fact that cars are left in suoh a position as to obstruct the view of the track ill one direction exouse him from looking in that direotion.
TO LOOK AND LISTBN.
was employed by contractors at a stone-qua.rry, easterly side of the main track of a branch railroad, operthe defendant, running between Rocky Hill, Somerset county, J:, arid Monmouth Junction, Middlesex county ,i,n said state. On the 3d day of November, 1884, plaintiff had occasiou to cross defendant's track at a point almost opposite a blacksmith shop, in which he w8s"l\'cdustOmed to work, distant about 12 feet from the westerly rairof defendant's main track. On the easterly side of defendant's main track were located, on the day of the injury, three side tracks immediately adjoining 'the main track a.foresaid, upon each of which side tracks were standing loaded stone-cars of such heighh.nd pattern that aperson standing near the same could not see over them. At the poiut where plaintiff attempted to cross, the cars in question had been uncoupled, so 'as to leave a free passage for those employed in the quarry to the blacksmith shoPiand it was the habit to leave this opening when the cars were shunted onto the sidings preparatory to their being loaded. Before crossing the main track, and when about 50 feet therefrom, plaintiff stopped and listened. Hearing no bell or whistle, and the stone-cars stan?ing on the side tracks obstructing his view in the direction in which the train was moving, he proceeded on his way, and upon reaching the main track was struck by a locomotive, sustaining injuries which resulted thereafter in the removal of a portion of the bone of the left leg, to recover damages for which this action was maintained. Ladi8las Karge, for plaintiff.. Geo. Tucker BW[iham, for defendant.
At Law. Plaintiff, a
U(l) Thltt plaintiff was not a trespasser, and has a right to recover if the injury complained of was caused by defendant's negligence." That point is affirmed. ' "(2) ':i'he fact that the accident occurred raises a presumption of defendant's J¥lgligencll'" . .' denied.
to charge the jury as follows:
McKENNAN,
J., (chargiJng jury.) The.plaintiff has requested the court
t.
I'EDERAL REPOR'l'llm,
"(8) Although there was no statutory obligation on the part of the defendant to ring a bell upon approaching the crossing in question, they might find it negligence to omit this when running its train across such crossing at a time when the view of the train was so farobstrllcted by the oars which had been permitted to remain upon the side tracks as to render the use of the crossing peculiarly hazardous." ' That point is affirmed. Iftl)e jury find; (rom the evidence, that plaintiff was duly careflll, and was crossing at the point In question rightfully, any injury to him through the defendant's omission ofa reasonable precaution will render the defendant liable ,I n' <lamages." That point also is affirmed. "(5) It is' for the jury to determirie what notice is reasonable, under thecircumstances of the crossmg in question." That is affirmed. "(6) ILtlle, jury find that the,cars were left in such a pOl:1ition, near thecrossing as to Obstruct the view of the track In the direction in which thetrain was moving, on the day the injury occurred, the, plaintiff was excused froijl looking direction." , That poilit is'denied. "(7) Plaintiff had the right to presume that the defendant, at the crossing in question"would use more care than ordinarily." ' That also is denied. "(8) When/for any reason, there is, difficulty in seeing an approaching train, this. is a circumstance which deJ;Ilands of the engineer the exel'cise of increased vigilance." That alr:;o is denied. "(9) If the ,whistle of the engine was not sounded, nor any other usual notice gi ven of the approach of the, train, the plaintiff had a right to presume the was clear; and unless the jury are satisfied, by affirmati ve proof. that the plaintiff did not use ordinary carll, the defendant is liable for the consequences of plaintIff's injuries...' , That is nffirmed. , , " (10) care j.s meant that care a person of common prudence takes of hisow,p e\)ncerns, or that, of care which men' of comlnon prudence exercise:'libout their own affaIrs. In determining what would be ordinary care ina particular case, reference must be had to the circumstances surrounding such case or occurrence." That point is affirmed. "(11) In estimating the damages fdr a persohal injury resulting from the negligence of the defendant, the jury may allow, not only for the direct expenses' incurred by the plaintiff, but also for the privation and inconvenience he has been subjected to; for the pain and suffering, bodily and mental, wbiQb )le, has or is likely tQ experience; as well as the pecuniary loss he has already sustained, and is likely to sustain during the remainder of his life, from his disabled condition, and his actual permanent loss of power." ' , That point is "(12) If the plaintiff is entitled to recover, the measure of his recovery 'is what is denominated · damages; , that is, such sum 'as will com-
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pensate him for the injury he bas sustalned. The elements entering into damage are the following: First, such sum as will compensate him for the expenses he has paid orincurred in effecting his cure, and caring for and nlUSing him during the period that he was disabled by the injury: second, the value of his time during the period that he was disabled by the injury: third, if the injury has impaired the plaintiff's power to earn money in the future, such sum as will compensate him for such loss of power: fourth, such reasonable sum as the jury shall award him on account of pain and anguish he has suffered by reason of his injury." That point is affirmed. II (13) If thE' jury find·that the defendan t had, without objection, permitted those l'mployed at his quarry and the public to cross the track at the }Klint where the injury occurred, though not in itself a pUblic crossing, it owed the duty of reasonable care towarlis those using the crossing." That point is affirmed. . "(14) If the jury find that plaintiff was passing the crossing in question upon an express or implied invitation or inducement of defendant, or by its mere permission, he was rightfillly there." That point is affirmed. The qefendant has asked me to charge you as follows: "(1) It is the duty of a person about to cross the tracks ofa railway to stop, look, and listen; before attempting to do so, at a point where, without danger to himself, he can have the best view of the track; and, if the jury believe that the plaintiff did not so stop and listen, he was guilty of a contributory negligence, and cannot recover in this action," That point is affirmed. "(2) If the jury believe that the plaintiff could have seen the approaching engine if he hart looked, and yet did not do so, Ol' if he did look, and yet did not see the engine, when it was plainly visible, then, in either of sl1ch cases, he was guilty of contributory' negligence. and the verdict must be for the defendant." That point is affirmed. "(3) The plaintiff, by going' on the tracks of the defendant at the point where he was struck, tJecame a trespasser, and was guilty of contributory negligence in so doing, and, in the absence of evidence of any willful or malicious act upon the part of the defendant or its servants causing his injury, cannot recover in this case, and the verdict must be for the defendant." That point is denied. "(4) There is no evidence of negligence on the part of the defendant or its servants, and therefore the verdict mnst be for the defendant." I refuse to give you that instruction. "(5) Under all the eridence in the case, the verdict of the jury must be for the defendant." That point also is refused. The plaintiff is entitled to recover, if he is entitled to recover at all, upon the basis of the proved negligence of the defendant; that is to say, that the defendant omitted to perform some duty or do something which he ought to bave done, OJ: that he did something which he ought not to bave that the injUry complained of here was the result of sucb