Smithwick v. Hall & Upson Co. "no fault or negligence can be imputed to him in regard." n In contemplation of the peril from the falling wall, it is found that "the spot where the plaintiff stood could not have been considered more dangerous than the place where he was directed to stand, though in fact most of the brick fell upon the side where he stood, and the result demonstrated therefore that the other side would have been safer in the event which occurred." Upon these facts the defendant contends that the plaintiff, in going to and remaining on the east end of the platform, contrary to the orders and in spite of the warning given him, and in view of the obvious and manifest danger in so doing, was guilty of such contributory negligence as bars him of his right to recover more than nominal damages. If the plaintiff's injuries had resulted from any of the perils and dangers attendant upon the mere fact of his standing and working on the east end of the platform, which were obvious and manifest to any one in his place, which were in the mind of the foreman when he told the plaintiff not to go there, and in view of which his fellow workman warned him, then this claim of the defendant would be a valid one. But upon the facts found it is without founda tion. The injury to the plaintiff was not the result of any such dangers, but was caused through the negligence of the defendant by the falling walls. This was a source of danger of which he had no knowledge whatever. He was justified in supposing that the wall was safe and would not be likely to fall upon him, no matter where he stood on the platform. He had no reason to anticipate even the slightest danger from that source before or after he changed his position. This being so, he could be guilty of no negligence with respect to this source of danger by changing his position contrary to orders; for negligence presupposes a duty of taking care, and this in turn presupposes knowledge or its legal equivalent. With respect to that danger the plaintiff upon the facts Smithwick v. Hall & Upson Co. ind,must be held to have acted as any reasonably careful would have acted under the same circumstances. In changing his position contrary to orders he voluntarily took the risk of all perils and dangers which a man of ordinary care in his place ought to have known or could reasonably have anticipated; but as to dangers arising through the defendant's negligence from other sources-dangers which he was not bound to anticipate and of whose existence he had no knowledge, he took no risk and assumed no duty of taking care. It was the duty of the defendant on the facts found to warn the plaintiff against the danger from the falling wall. Now the act or omission of a party injured which amounts to what is called contributory negligence, must be a negligent act or omission, and in the production of the injury it must operate as a proximate cause or one of the proximate causes, and not merely as a condition. In the case at bar the conduct of the plaintiff, as we have seen, was, with respect to the danger from the falling wall, not negligent for the want of knowledge or its equivalent on the part of the plaintiff. Nor was his conduct, legally considered, a cause of the injury. It was a condition rather. If he had not changed his position he might not have been hurt. And so too if he had never been born, or had remained at home on the day of the injury, it would not have happened; yet no one would claim that his birth or his not remaining at home that day, can in any just or legal sense be deemed a cause of the injury. The court below has found that the plaintiff's fall in the position in which he stood was due to the giving-way of the wall, and that most of his injuries were occasioned by the fall. His position there, upon the facts found, can no more be considered as a cause of the injury, than it could be in a case where the defendant, in doing some act near the platform without the plaintiff's knowledge, had negligently knocked him to the ground, or had negligently hit him with a stone. Had the injury been occasioned by a mis Smithwick v. Hall & Upson Co. step or slip from the platform by the carelessness of the plaintiff, or for the want of a railing, the causal connection between the change of position and the injury would, legally speaking, be quite obvious; but from a legal point of view no such connection exists between the change of position and the giving way of the wall. The plaintiff had full knowledge of and was abundantly cautioned against certain particular sources of peril and danger, and he voluntarily neglected the warnings and took the risk of those perils and dangers. He was injured through the negligence of the defendant from an entirely different source of danger, of which he knew and could know nothing, and of whose existence it was the duty of the defendant to warn him. Under these circumstances the failure or neglect to heed the warning does not constitute contributory negligence. Gray v. Scott, 66 Penn. St., 345. In the case cited certain boys had been warned not to play at a certain point because of some particular and obvious dangers existing there. They failed to heed the warning, and one of them, playing at that place, was killed. His death was caused by the negligence of another and came from a source of danger not obvious and entirely dif ferent from any the boys had been warned against. In answering the argument that the boy's failure to heed the warnings was a cause of his death and contributory negligence, the court say:-"But because he was under the tramway in the passage below it is thought he was guilty of contributory negligence. He could not be guilty of negli gence as to the defendant without there was some reason to expect danger and a duty of care on his part in relation to it. There was ordinarily none. He had a right therefore to suppose everything secure and safely managed on the tramway, and because it was not he was killed. Precisely the same argument could have been used if the boy had been killed in that place by the negligent use of firearms discharged a hundred yards off.” The defendant seems to claim however that, although Smithwick v. Hall & Upson Co. some of the plaintiff's injuries were caused by falling bricks, yet most of them were caused by his fall; and that as he probably would not have fallen had he remained behind the railing, he contributed to his injury by placing himself where in case of such accident there was nothing to prevent his fall. Whether the claim that he would probably not have fallen had he remained where he was stationed be true or not, must forever remain matter of conjecture. But if its truth could be demonstrated it would not, as we have seen, change the relation of the plaintiff's act to the legal cause of his injury, or make that act, from a legal standpoint, a contributing cause when it was but a condition. And if the claim means that the plaintiff by his act increased the injury merely, then if this were true it would not be such contributory negligence as would defeat the action. To have that effect it must be an act or omission which contributes to the happening of the act or event which caused the injury. An act or omission that merely increases or adds to the extent of the loss or injury will not have that effect, though of course it may affect the amount of damages recovered in a given case. Gould v. McKenna, 86 Penn. St., 297; Stebbins v. Central R. R. Co., 54 Verm., 464. This claim however, on the facts found, is wholly without foundation. The plaintiff is entitled to judgment in his favor for one thousand dollars, and the Superior Court is so advised. In this opinion the other judges concurred. Stanton v. N. York & Eastern R. R. Co. 64 495 59 272 DANIEL N. STANTON AND ANOTHER vs. THE NEW YORK & EASTERN RAILWAY COMPANY AND OTHERS. 61 544 59 272 New Haven and Fairfield Cos., April T., 1890. ANDREWS, C. J., CARPEN- A corporation has power when fully organized to ratify a contract made by The ratification makes the contract in all respects what it would have been 1. That by the ratification of the contract the corporation became bound 2. That it was no defence that after failing to get authority to build the bridge it was impracticable to obtain subscriptions to the stock or to raise money to build the road. 3. That it did not affect the case that the plaintiff knew that the success of the enterprise depended upon getting authority to build the bridge. 4. That the contract being in writing, and specially exempting the plaintiff, as it did, from all duty in the matter of bridges over navigable waters, no parol agreement or understanding inconsistent with it could be shown. In all cases where a plaintiff has been deprived by the act of the defendant of the benefit of a contract with him, he is entitled to recover what he has lost by the defendant's acts. He has been deprived of his contract and should have in lieu thereof its value. Nominal damages mean no damages at all. They exist only in name and not in amount. [Argued April 24th-decided July 10th, 1890.] APPEAL by Henry Hungerford, one of the respondents in |