Page:Harvard Law Review Volume 32.djvu/329

293 RECENT CASES 293 panics shall without compensation provide safety appliances at street cross- ings. Delaware, etc. R. Co. v. East Orange, 41 N. J. L. 127; Village of Clara City V. Great Northern R. Co., 130 Minn. 480, 153 N. W. 879; Cincinnati, I. 6* W. R. Co. V. City of Conner sville, 218 U. S. 336. See 3 Abbott, Municipal Corporations, § 854. If at the time in question there is a preexisting right on the part of the city to require the railway company to maintain the cross- ing without compensation, an agreement by which the city gives up that right is obviously invalid. State v. Great Northern R. Co., 134 Minn. 249, 158 N. W. 972; Northern Pacific R. Co. v. Minnesota, 208 U. S. 583. But in the prin- cipal case the city had no preexisting right to give up. The railroad owned the land and there was no street over it. Not until the railroad granted to the city the right to open a street over its property did the city acquire any police power over the crossing. State v. Chicago, St. P., M. 6° 0. R. Co., 85 Minn. 416, 89 N. W. i. Since, therefore, the contract with the railway com- pany was not a surrender of the city's police power, the subsequent ordinance in yiolation thereof was null and void. Negligence — Charitable Corporation — Liability or Hospital to Pay Patient for Negligence of Its Servants. — Plaintiff's intestate was confined in the hospital of defendant, a charitable corporation without capital stock and paying no dividends. Owing to insufficient guarding, he jumped from a window in a delirium and was killed. He paid fifteen dollars a week for his care. Held, that defendant was not liable for the negligence of its servants. Mikota V. Sisters of Mercy, 168 N. W. (Iowa) 219. Where the injured person was wholly a recipient of the charity, the charitable funds are generally not chargeable with damages for the torts of servants. Abston V. Waldon Academy, 118 Tenn. 25, 102 S. W. 351. Contra, Donaldson V. General Public Hospital, 30 New Bruns. 279. Where the injured person paid for his care the institution is still immune. Downes v. Harper Hospital, loi Mich. 555, 60 N. W. 42; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909. Contra, Mersey Docks v. Gibbs, i H. L. 93; Glavin v. Rhode Island Hospital, 12 R. I. 411. But where the plaintiff was not a recipient of the charitable services, liability has often been imposed. Bru^e v. Central Methodist Episcopal Church, 147 Mich. 230, no N. W. 951; Gamble v. Vander- bilt University, 138 Tenn. 616; 200 S. W. 510 (1918). In support of the rule of non-liability it is said that the trust funds must not be diverted to pay such claims. See Fire Insurance Patrol v. Boyd, 120 Pa. 624, 647, 15 Atl. 553, 557. But see 31 Harv. L. Rev. 481. The cases imposing liability in favor of persons not recipients of the charity are inconsistent with this reasoning. Some courts base non-liability on an implied agreement not to hold the institution liable. See Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 303. This seems fictitious, especially where the patient pays. The question turns upon the policy behind the rule of respondeat superior. It is said that one who employs another to do an act for his benefit should bear the risk of injury therefrom to third persons. See Hall v. Smith, 2 Bing. 156, 160; Hearns v. Waterbury Hospital, 66 Conn. 93, 125, 33 Atl. 595, 604. But "benefit" here should mean the furtherance of an enterprise in which one is engaged. A strong additional reason lies in the need of liability in order to secure careful management. See 31 Harv. L. Rev. 482. Charitable institutions form no exception. Negligence — Proximate Causation — The Intervention of an Il- legal Act — The Lusitania. — The British passenger-carrying merchant- man, Lusitania, sailed from New York for Liverpool with the knowledge that Germany had declared a submarine blockade of the waters surrounding England and Ireland. While at sea numerous wireless advices were received from the British Admiralty as to the activities and location of submarines,