We are sensible that in some of the cases which we have put, our rule may appear too lenient. But we do not think that it can be made more severe, without disturbing the whole order of society. It is true that the man who, having abundance of wealth, suffers a fellow creature to die of hunger at his feet, is a bad man,—a worse man, probably, than many of those for whom we have provided very severe punishment. But we are unable to see where, if we make such a man legally punishable, we can draw the line. If the rich man who refuses to save a beggar’s life at the cost of a little copper is a murderer, is the poor man just one degree above beggary also to be a murderer if he omits to invite the beggar to partake his hard-earned rice? Again, if the rich man is a murderer for refusing to save the beggar’s life at the cost of a little copper, is he also to be a murderer if he refuses to save the beggar’s life at the cost of a thousand rupees? Suppose A to be fully convinced that nothing can save Z’s life, unless Z leave Bengal and reside a year at the Cape, is A, however wealthy he may be, to be punished as a murderer because he will not, at his own expense, send Z to the Cape? Surely not. Yet it will be difficult to say on what principle we can punish A for not spending an anna to save Z’s life, and leave him unpunished for not spending a thousand rupees to save Z’s life. The distinction between a legal and an illegal omission is perfectly plain and intelligible. But the distinction between a large and a small sum of money is very far from being so; not to say that a sum which is small to one man is large to another.
The same argument holds good in the case of the ford. It is true that none but a very depraved man would suffer another to be drowned when he might prevent it by a word. But if we punish such a man, where are we to stop? How much exertion are we to require? Is a person to be a murderer if he does not go fifty yards through the sun of Bengal at noon in May in order to caution a traveller against a swollen river? Is he to be a murderer if he does not go a hundred yards?—if he does not go a mile?—if he does not go ten? What is the precise amount of trouble and inconvenience which he is to endure? The distinction between the guide who is bound to conduct the traveller as safely as he can, and a mere stranger, is a clear distinction. But the distinction between a stranger who will not give a halloo to save a man’s life, and a stranger who will not run a mile to save a man’s life, is very far from being equally clear.
It is, indeed, most highly desirable that men should not merely abstain from doing harm to their neighbours, but should render active services to their neighbours. In general, however, the penal law must content itself with keeping men from doing positive harm, and must leave to public opinion, and to the teachers of morality and religion, the office of furnishing men with motives for doing positive good. It is evident that to attempt to punish men by law for not rendering to others all the service which it is their duty to render to others would be preposterous. We must grant impunity to the vast majority of those omissions which a benevolent morality would pronounce reprehensible, and must content ourselves with punishing such omissions only when they are distinguished from the rest by some circumstance which marks them out as peculiarly fit objects of penal legislation. Now, no circumstance appears to us so well fitted to be the mark as the circumstance which we have selected. It will generally be found in the most atrocious cases of omission; it will scarcely ever be found in a venial case of omission; and it is more clear and certain than any other mark that has occurred to us. That there are objections to the line which we propose to draw, we have admitted. But there are objections to every line which can be drawn, and some line must be drawn.
Section VI
Liability of Occupiers of Premises
MAYNARD v. BOSTON AND MAINE RAILROAD
Supreme Judicial Court, Massachusetts, September 4, 1874.
Reported in 115 Massachusetts Reports, 458.
Tort for the killing of a horse on a railroad by a locomotive engine.
Upon the trial, the plaintiff admitted that the horse must be considered as trespassing upon the railroad, but contended and offered evidence tending to show that by an exercise of proper care the injury to the horse might have been avoided. The defendants offered evidence to control this, and tending to show that they did all they reasonably could do to stop their train before striking the horse. There was no evidence of any wanton misconduct on their part.
The counsel for the defendants contended and asked the presiding judge to rule, that the defendants would not be liable, unless the plaintiff proved a reckless and wanton misconduct of their employees in the management of the train when the horse was killed. The presiding judge declined so to rule; but did rule that though the horse was trespassing upon the defendants’ land at the time, the managers of the train could not carelessly run over him, but were bound to use reasonable care to avoid injuring him, and that if the jury found that by the exercise of reasonable care they might have avoided injuring the horse, they would be liable. The jury found for the plaintiff, and the defendants alleged exceptions.[[123]]
Gray, C. J. If the horse had been rightfully upon the defendants’ land, it would have been their duty to exercise reasonable care to avoid injuring the horse. But it being admitted by the plaintiff that his horse was trespassing upon the railroad, they did not owe him that duty, and were not liable to him for anything short of a reckless and wanton misconduct of those employed in the management of their train. The defendants were therefore entitled to the instruction which they requested. Tonawanda Railroad v. Munger, 5 Denio, 255; S. C. 4 Comst. 349; Vandegrift v. Rediker, 2 Zab. 185; Railroad Co. v. Skinner, 19 Penn. St. 298; Tower v. Providence & Worcester Railroad, 2 R. I. 404; Cincinnati, Hamilton & Dayton Railroad v. Waterson, 4 Ohio St. 424; Louisville & Frankfort Railroad v. Ballard, 2 Met. (Ky.) 177.
The instruction given to the jury held the defendants to the same obligation to the plaintiff as if his horse had been rightfully on their land; and made their paramount duty to the public of running the train with proper speed and safety, and their use of the land set apart and fitted for the performance of that duty, subordinate to the care of private interests in property which was upon their track without right.