documents will furnish competent evidence or necessary information.

Nor is it essential as was held in Ferry v. Williams, that his interest should be private, capable of sustaining a suit or defense on his own personal behalf. It will justify his demand for inspection, if he may act in such suit as a representative of a common or public right. The cases in England, in which a private subject has secured inspection of public or quasi public documents on the ground of being such a representative, are comparatively rare, because of the prevalence of the rule that the civil remedy for wrongs by which no private rights were peculiarly affected was usually in the name of the attorney general acting on behalf of the public. But whenever the subject was, by reason of his relation to the common interest, permitted to litigate for its protection, the right of inspection was fully secured to him. Thus, in Rex v. Shelly, 3 T. R. 141, where some of the burgage tenants were testing by quo warranto the right of the defendant to be a burgess, a full inspection of the court rolls, not limited to the evidence of their own titles, was granted them. In Rex v. Babb, 3 T. R. 579, on an information by three aldermen to inquire into the right of Woolmer to be mayor of Great Grimsby, the relators had a rule for the inspection and copies of all the public books, records and papers of the borough of Great Grimsby regarding the subject in dispute. And in the cases of Rex v. Justices of Leicester, Rex v. Marylebone, Rex v. Justices of Staffordshire, and Rex v. Merchant Tailors' Co., already cited, the applicants for inspection had no other interest in the matter involved than such as they shared in common with all the ratepayers of the parish or members of the corporation, but that was not even suggested as ground for refusing the mandamus. And indeed, upon the reason of the thing, if inspection of public documents will be granted to a private individual when he is seeking merely the furtherance of his own private ends, a fortiori should it be accorded to him when he is aiming at the accomplishment of a public purpose, as to which the courts will assist his design through a suit instituted by him in the public behalf.

a

CONCERNING THE DEGREES OF NEGLIGENCE AS APPLIED TO THE CASE OF COMMON CARRIERS.-II.

In Wright v. Gaff, 6 Ind. 416, the defendant had agreed to tow a flat boat, the owners of the latter agreeing that it should be done at their risk. It being sunk by the negligence of the defendant in towing at an improper speed, the court held that this was "gross negligence" and that he was therefore liable, and this ruling was affirmed in Indianapolis etc., R. Co. v. Reming, 13 Ind. 518, subsequently decided. In Indiana Cent. R. Co. v. Mundy, 21 Ind. 48 the indorsement on a free pass that the person receiving it agreed to assume all risk of personal injury and loss or damage while using it, was held not to exempt the company from the consequences of gross negligence. "Ordinary negligence" was also spoken of in the same way in Indianapolis etc. R. Co.v Allen, 31 Ind. 394. But in Michigan Southern R. Co. v. Heaton, 37 Ind. 448, the court ruled that a carrier could no more stipulate for exemption from a slight degree of negligence than he could for gross negligence, and in Ohio etc., R. Co. v. Selby, 47 Ind. 483, decided in 1874, the question received a thorough examination; the three cases first cited in this paragraph were overruled, the court remarking that the very decided tendency of modern decisions was to disregard the distinction between different kinds or degrees of negligence. In Illinois Cent. R. Co. v. Adams, 42 Ill. 474, an action against a railroad for injuries to live stock the court in discusing the evidence said: "If then, it was gross negligence in the conductor of the train carrying these hogs, in refusing to apply water to them when requested at Bloomington or at Normal, at which latter place water was abundant and convenient, the company could not contract against that," and the same view is taken in Adams Express Co. v. Haynes, 42 Ill. 89. Both these cases rest on the earlier. one of Illinois Cent. R. Co. v. Morrison, 19 Ill. 136, in which the question of the power of carriers of live stock to restrict their liability coming before the Supreme Court of Illinois for the first time, Breese J., laid down the rule in that State thus: "Railroad companies have a right to restrict their liability as common carriers by such contracts as may be agreed upon specially, they still remaining liable for

gross negligence or wilful misfeasance against which good morals and public policy forbid that they should be permitted to stipulate." In New York there are several adjudications in which the distinction, in actions against common carriers, is made. Thus in French v. Buffalo &c. R. Co; 4 Keyes 114; s. c., 2 Abb. App. 196 it was said: "This is the recognized and accepted distinction between the different degrees of negligence, a distinction which is often found but of little practicable importance when dealt with by a jury on the trial of a cause, but one which the courts are bound to regard in the determination and application of the rules of law," and similar views have been expressed in other cases.1

The cases in which the distinction has been rejected are too numerous to set out in this place, and therefore it will be sufficient to cite the adjudications on the question in the Supreme Court of the United States, in which the reasons for the rule there adopted are fully shown. It is said by the Supreme Court of the United States in Philadelphia R. Co. v. King, 16 How. 468 (1850): "When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence, and whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases, may well deserve the epithet gross." "The theory that there are three degrees of negligence described and known as slight, ordinary and gross," says Mr. Justice Curtis, in The New World v. King, 16 How. 472 (1853), "has been introduced into the common law by some of the commentators of the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances to whose influ

1Consult Wells v. New York Cent. R. Co., 24 N. Y. 181; Perkins v. New York Cent. R. Co., 24 N. Y. 196; Smith v. New York Cent. R. Co., 24 N. Y. 222; Bissell v. New York Cent. R. Co., 25 N. Y. 442; Poucher v. New York Cent. R. Co., 49 N. Y. 263.

ence the court has been forced to yield until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation." But the question has been put conclusively at rest in that court by Railroad Co. v. Lockwood, 17 Wall. 357 (1873) in delivering the opinion in which case Mr. Justice Bradley referred to the discussion in this language: "We have already reverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party and which he fails to perform, that of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence, and if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In such case the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply negligence.' And this seems to be the tendency of modern authorities. If they mean more than this, and seek to abolish the distinction of degrees of care, skill and diligence required in the performance of various duties and the fulfilment of various contracts, we think they go too far; since the requirement of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed. The compilers of the French civil code undertook to abolish these distinctions by enacting that every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.' Touillier, in his commentary on the code, regards this as a happy thought, and a return to the law of nature. But such an iron rule is too regardless of the foundation principles of human duty, and must often operate with great severity and injustice. In the case before us, the law, of special contract, fixes the degree of care and diligence due from the railroad company to the persons carried on its trains. A failure

in the absence

to exercise such care and diligence is negligence. It needs no epithet properly and legally to describe it. If it is against the policy of the law to allow stipulations which will relieve the company from the exercise of that care and diligence, or which, in other words, will excuse them for negligence in the performance of that duty, then the company remains liable for such negligence. The question whether the company was guilty of negligence in this case which caused the injury sustained by the plaintiff, was fairly left to the jury. It was unnecessary to tell them whether, in the language of law writers, such negligence would be called gross or ordinary."

These authoritative utterances should effectually settle the question. The degrees of negligence then can be spoken of no longer in the case of common carriers. The absence of care according to circumstances is sufficient to render them liable for breaches of duty and the term "gross," if used at all can only be used as a "vituperative epithet." In this sense it may properly be used in cases involving the question of contributory negligence, and in cases where the question of exemplary damages may arise for determination. But in no other.

PERSONAL INJURIES NEW TRIAL FOR INSUFFICIENCY OF DAMAGES.

PHILLIPS v. SOUTHWESTERN R. CO.

English Court of Appeal, July, 1879.

A plaintiff complaining of a personal injury is entitled to compensation for the pain undergone, the effects on the health according to the degree and probable duration, the incidental expenses and the pecuniary loss, and if it appear that a jury must have omitted to take into account any of these heads of damages, and that the verdict is, under the circumstances, unreasonably small, it is competent to a court to order a new trial at the instance of the plaintiff, although there be no misdirection by the judge, nor mistake or misconduct on the part of the jury.

This was an appeal by the defendant company from a decision of the Queen's Bench Division, reported 9 Cent. L. J. 125.

The case was shortly as follows: An action was brought by the plaintiff, a physician, for injuries sustained when travelling on the defendant's railway. It appeared at the trial that he had sustained such severe personal injuries as to injure his health irreparably, and render his life a burden to him, and

that he had been incapacitated from carrying on his profession, and would probably never recover. It was proved that the medical and other expenses had amounted to £1,000, and further expenses would probably be for a long time necessary; that the plaintiff's professional income had been £5.000 a year, and that for the sixteen months between the accident and the trial he had been incapacitated from earning anything. The jury gave £7,000 damages, A rule nisi for a new trial had been obtained on the ground that the damages were inadequate, against which the railway company showed cause, contending that where an action was for unliquidated damages the court could not interfere on the ground that the damages were inadequate, unless there had been a misdirection by the judges or some misconduct or mistake in the calculation of figures by the jury.

In the court below, Cockburn, C. J., and Lopez, J., held that, where on the facts it appeared that the jury could not have taken into account some of the elements properly involved in the plaintiff's claim, the court should grant a new trial on the ground of inadequacy of damages. They were of opinion that on the facts as proved this must have been the case, and therefore made the rule absolute.

On the appeal, Ballantine, Sergt., and Dugdale, for appellants, referred to Forsdike and Wife v. Stone, 18 T. T, Rep. (N. S.) 722; L. R., 3 C. P. 607; Rowley v. London & Northwestern Railway Co., 29 L. T. Rep. (N. S.) 180; L. R., 8 Ex. 221; Falvey v. Stanford, 31 L. T. Rep. (N. S.) 677; L. R. 10 Q. B. 54; Kelly v. Sherlock, L. R., 1 Q. B. 686; Armytage, v. Haley, 4 Q. B. 917; Hayward v. Newton, 2 Str. 940: Rendall v. Hayward, 5 Bing. N. C. 424; Mayne on Damages. 447.

The Attorney-General (Sir J. Holker), Pope, Q. C., and A. L. Smith, for plaintiff, relied upon Blake v. Midland Railway Co., 18 Q. B. 93, 111; Pym v. Great Northern Railway Co., 2 B. & S. 768 and 769.

JAMES, L. J.

In this case we are of opinion that we can not on any of the points differ from the judgment which the Queen's Bench Division have arrived at in this matter. With regard to the first point, which seems to me to be a very important one-that is, as regards dissenting from the verdict of a jury upon a matter which, generally speaking, is considered to be within their province, namely, the amount of damages-we agree with what has been said in the Queen's Bench Division; and in saying this we differ from or overrule the verdict of the jury beagree also that really the judges have no right to cause they take a different view, and merely because they differ. The judges may think that if they had been the jury they would have given a little more or would have given a little less, Still, there is this rule,that the verdicts of juries in all these cases: are subject, and must, for the sake of justice, be subject to the careful supervision of a court of first instance, and if neecssary, of a court of appeal, in this way; that if in the judgment of the court the damages given are unreasonably large, or if they are unreasonably small, then the court is bound to act upon the conclusion thus arrived at, and must send

believing their action was legal. It also alleges, what appears to have been the fact, that the entertainment was provided on the credit of the city by persons who had no connection with the city government and who honestly believed that the committee had power to contract for the city. These persons remain unpaid. This suit was commenced September 27, 1878, by certain tax-payers of the city of Newport. The bill prays for an injunction to restrain the defendant, who is the city treasurer of the city of Newport, from paying the cost of the entertainment out of the treasury, it being anticipated that an order for the payment may be given by the city council.

The bill sets forth a clause of the charter of the city of Newport, which declares that nothing in the charter shall be construed "as giving power to vote money for any object, except for the regular ordinary and usual expenses of the city."

The defendant concedes that the city council had no authority to contract or to empower the city to contract for the entertainment in the name of the city, and rests his defense solely on the ground that the complainants have forfeited all claim to equitable relief by their laches in waiting until after the entertainment had been given before bringing the suit. He cites in support of this position the case of Tash v. Adams, 10 Cush. 252, in which the Supreme Judicial Court of Massachusetts refused to enjoin the payment of money illegally appropriated for the celebration of the second centennial anniversary of the settlement of a Massachusetts town, because of such laches on the part of those by whom the injunction was asked. "With a full kuowledge of the vote of the town and the proceedings of the committee," says Mr. Justice Bigelow, in delivering judgment, "they, i. e. the petitioners, permitted contracts to be made, and expenditures to be incurred, not only by the committee, but by third parties, who acted in good faith, relying on the credit of the town. They took no measures to enforce their rights until after the celebration had taken place, and innocent parties had come under liabilities, which they would not have assumed if the petitioners had seasonably sought redress for the impending grievance. To issue an injunction restraining the payment of the bills thus incurred would be manifestly most inequitable;” and see Fuller v. Melrose, 1 Allen, 166, in which Tash v. Adams is affirmed.

We do not see any material distinction between Tash v. Adams and the case at bar, and therefore, if Tash v. Adams is good authority, the bill in the case at bar must be dismissed. We do not think it can be followed as authority. The object of this suit is to restrain the defendant as a city treasurer from making an illegal payment out of the treasury. The defendant admits the illegality of the payment, and therefore he virtually admits that the complainants are only seeking to have him enjoined from doing what it is his duty to refrain from doing without injunction. His only objection to the injunction is, that the complainants have forfeited their claim to it by their laches. But toward whom have they been guilty of laches? Not

toward the defendant, and not toward the city, for which the defendant acts. The injunction will not hurt the defendant. It will benefit the city. The laches, if laches they can be called, are laches toward certain persons, not parties to the suit, having an illegal claim on the treasury. The defendant is seeking to protect them at the expense of the treasury, when it is his duty to protect the treasury against them. For the court to refuse to enjoin such a dereliction of official duty looks very much like conniving at it. The defense would be more meritorious if the persons in whose behalf it is interposed had any claim on the city for value received. But they have none. The city neither danced at the ball nor feasted at the banquet. It got nothing substantial out of them. If the city's. money goes to pay for them, it will go to pay for what the city neither bargained for nor enjoyed. And again, the defense would appeal more forcibly to the consideration of the court if the complainants had taken any part in procuring the entertainment to be given. But they did not. Their only fault is the passive one of having delayed their suit. And, in this connection, it is to be borne in mind that the complainants, though they sue alone do not sue for themselves alone, but for themselves in common with all other Newport tax-payers, and though they may have been guilty of dilatoriness, there are doubtless numerous other tax-payers who by reason of absence, sickness, infancy, imbecility, are entirely innocent in that regard. The defendant represents the entire city, these innocent tax-payers included. It is his duty to defend, not betray, their interests, and the court ought not to countenance a defense which amounts to a betrayal of them.

The case may be considered in still another light. It is of the essence of the defense that the persons who furnished the entertainment acted in good faith, being ignorant that the city was incapable of contracting for it. If they knew the city was incapable of contracting for it, the defense falls to the ground. But was it not their duty to know it? And can the court entertain the supposition that they did not know it? It is well settled that a municipal corporation, when sued directly on a contract which it is incapable of making, cannot be estopped from taking advantage of its incapacity because the party suing has acted on the contract in good faith, supposing it to be legal, for the reason that any person who contracts with such a corporation, which is a creature of public law, is bound at his own peril to know the extent of its capacity. Dillon Municip. Corp. § 381; Weismer v. Village of Douglas, 64 N. Y. 91; Thomas v. City of Richmond, 12 Wall. 349; Town of South Ottawa v. Perkins, 4 Otto,260; 4 Cent. L. J. 442; Chisholm v. Montgomery, 2 Woods, 584; Bradley v. Ballard, 55 Ill. 417. This rule has been applied in cases where there was much more reason for supposing the contract to be legal than in the case at bar, for in the case at bar the illegality is so evident that the slightest inquiry would have discovered it. Under this rule, if the persons who furnished the entertainment were suing the city of Newport for their pay for it, they could not be heard to urge in sup