A close case was where a seaman sued, alleging injury because of the violation of an act requiring shipowners to keep medicine on board. Though the decision went in plaintiff's favor, considerable doubt was subsequently expressed of its correctness.123

Duty to Party Injured

Now, conceding that the act may be so drawn that it imposes a duty in favor of some one, the next question is whether it imposes a duty in favor of the particular individual by whom the suit is brought; for it is not sufficient that the duty has been created, nor even that the breach thereof should constitute actionable negligence so far as some members of the community are concerned. It must appear in addition that the plaintiff is one of a class of persons for whose benefit the Legislature passed the statute. For instance, a statute requiring fire escapes to be maintained on apartment houses is evidently for the benefit of tenants.124 An act obliging railroad companies to blow whistles and ring bells at crossings,125 or to maintain a flagman 126 or a signboard 127 there, is for the benefit of one crossing the road, while failure to provide statutory safeguards for dangerous machinery will give a cause of action to employés injured thereby.128 For other cases reference is made to the note.129

128 Couch v. Steel, 3 El. & Bl. 402. But see Atkinson v. Newcastle Waterworks Co., 2 Ex. D. 441.

124 WILLY v. MULLEDY, 78 N. Y. 310, 34 Am. Rep. 536, Chapin Cas. Torts, 10.

125 Richardson v. New York Cent. R. Co., 45 N. Y. 846; Ernst v. Hudson River R. Co., 35 N. Y. 9, 90 Am. Dec. 761; Chicago & E. I. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761. Liability is not restricted to cases of collision. Norton v. Eastern R. Co., 113 Mass. 366, holding that a recovery might be had, where a warning was not given, for injury to a horse driven by plaintiff, which was frightened by the sudden approach of the cars and broke its leg. Green v. Eastern R. Co. of Minnesota, 52 Minn. 79, 53 N. W. 808, where plaintiff's horse, having been frightened, jumped and whirled around, throwing plaintiff.

126 Johnson v. St. Paul & D. R. Co., 31 Minn. 283, 17 N. W. 622. 127 Dodge v. Burlington, C. R. & N. R. R. Co., 34 Iowa, 276. 128 Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899; Ashman v. Flint & P. M. R. Co., 90 Mich. 567 51 N. W. 645; Klein v. 129 See note 129 on following page.

On the other hand, a statute which required that all engaged in blasting should give seasonable notice of each explosion, so that "all persons or teams that may be approaching shall have a reasonable time to retire to a safe distance," will not give a cause of action to a workman injured by the failure of a fellow quarryman to give such notice.130 Nor is the advertising of letters unclaimed at the post office deemed to be for the benefit of the newspapers wherein such advertisements appear.131

An act requiring railroads to block "frogs" in their yards is designed for the protection of those rightfully upon the

Garvey, 94 App. Div. 183, 87 N. Y. Supp. 998; Klatt v. N. C. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563; Groves v. Winborne, [1898] 2 Q. B. 402, 67 L. J. Q. B. 862, 74 L. T. Rep. N. S. 284.

129 Burk v. Creamery Package Mfg. Co., 126 Iowa, 730, 102 N. W. 793, 106 Am. St. Rep. 377; Billings v. Breinig, 45 Mich. 65, 7 N. W. 722; Keyser v. Chicago & G. T. Ry. Co., 66 Mich. 390, 33 N. W. 867; Kinney v. Koopman, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, note; Channon Co. v. Hahn, 189 Ill. 28, 59 N. E. 522; Brown v. Wittner, 43 App. Div. 135, 59 N. Y. Supp. 385; McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153.

130" Persons that may be approaching' seem rather intended to apply to those only who are not engaged in or around the quarry, and who, therefore, being ignorant of their proximity to danger, are seen coming within the danger line, instead of including with them such persons also as are constantly engaged there, and have personal knowledge of what is taking place there." Hare v. McIntire, 82 Me. 240, 19 Atl. 453, 8 L. R. A. 450, 17 Am. St. Rep. 476.

131 STRONG v. CAMPBELL, 11 Barb. (N. Y.) 135, Chapin Cas. Torts, 13. Action by proprietors of a newspaper, alleged to have the largest circulation in Rochester, against the postmaster of that city, based on the latter's refusal to advertise unclaimed letters as required by an act of Congress. The statute, it was held, was not passed "that publishers of newspapers might be enabled to obtain profitable employment and receive emoluments from the public treasury. That was no part of the design of the lawmakers. The design of the law obviously was, first, to benefit persons receiving communications through the post office, by giving the widest possible notice that letters remained on hand ready for delivery, and secondly, to secure the greatest amount of revenue to the department by the delivery of letters and the receipt of postage thereon, which might otherwise never be called for and consequently be returned to the dead letter office."

premises, and not of trespassers; 182 and a city ordinance that in every factory elevators, "when so located as to endanger the lives and limbs of those employed therein while in discharge of their duties, shall be so far as practicable so covered or guarded as to insure against any injury to such employés," cannot, when disobeyed, form the basis of an action by a member of the fire patrol, who enters such building in the discharge of his duties, since he is not an "employé." 183 Again an act making it obligatory for railroads to fence against live. stock "running at large," which contains a further provision that the operating of trains on depot grounds, where no such fence is built, at a greater rate of speed than eight miles per hour, shall be deemed negligence, creates no cause of action in favor of the owner of a horse killed at the depot while harnessed to a wagon, since such horse was not “running at large."

"134

Not only must the statute create a duty to the very class of persons to which plaintiff belongs, but the loss which plaintiff suffers must be of the kind which the statute was designed to prevent. Hence, where a statute enacted for the purpose of guarding against the spread of contagious diseases among animals carried into England required the construction of pens on vessels, it was held that a shipper could recover no damages for sheep washed overboard, although the sheep would not have been lost had the pens been built.1 Creation of Remedy

135

If, upon construing the statute, it is found that its violation gives a cause of action to the particular party who may have suffered loss, it then becomes necessary to note whether

132 Akers v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 540, 60 N. W. 669.

133 Gibson v. Leonard, 143 Ill. 182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376.

134 Cohoon v. Chicago, B. & Q. R. Co., 90 Iowa, 169, 57 N. W. 727. For further illustrations, see Mobile Life Ins. Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580; Carper v. Receivers of Norfolk & W. R. Co., 78 Fed. 94, 23 C. C. A. 669, 35 L. R. A. 135; Wright v. Southern Ry. Co. (C. C.) 80 Fed. 260; Kansas City, Ft. S. & M. R. Co. v. Kirksey, 60 Fed. 999, 9 C. C. A. 321; People v. Linck, 71 Ill. App. 358.

135 Gorris v. Scott, L. R. 9 Exch. 125.

the Legislature has provided a specific remedy, which can alone be followed.

It is important at this stage to differentiate, on the one hand, between cases where the right created is entirely new, and is not one already recognized by the common law, and, on the other, where the right, although recognized by the statute, was not created by it. In the former instance (i. e., where the right created is entirely new), if the statute provides for the method of redress, the injured party is to be regarded as confined thereto. For instance, at common law, property may be destroyed to prevent the spread of fire, and no compensation was allowed. Where the statute gives a right to compensation, and prescribes how it shall be collected, that method must be pursued.136

A further example illustrative of this principle is found in the case of patents. As we have already seen, the patent right is purely statutory, and as jurisdiction of suits for infringement is vested solely in the United States courts, state tribunals have no authority to entertain them.137 Where a municipality is made liable under circumstances where it would not be responsible at common law, providing that preliminary notice is served, such notice is essential to the maintenance of an action against it.188 Statutes giving a cause of action for death due to wrongful act or neglect can be brought only by 189 and for the benefit of persons to whom the cause of action is given,140 and only to the extent 1*1 and within the time specified.142

136 Russell v. Mayor, etc., of City of New York, 2 Denio (N. Y.) 461.

187 Dudley v. Mahew, 3 N. Y. 9; Continental Store Service Co. v. Clark, 100 N. Y. 370, 3 N. E. 335; Waterman v. Shipman, 130 N. Y. 301, 308, 29 N. E. 111.

138 Sachs v. City of Sioux City, 109 Iowa, 224, 80 N. W. 336.

189 Schmidt v. Menasha Woodenware Co., 99 Wis. 300, 74 N. W. 797.

140 Western Union Tel. Co. v. McGill, 57 Fed. 699, 6 C. C. A. 521, 21 L. R. A. 818.

141 Ohnmacht v. Mt. Morris Electric Light Co., 66 App. Div. 482, 73 N. Y. Supp. 296.

142 Staeffler v. Menasha Woodenware Co., 111 Wis. 483, 87 N. W. 480; County v. Pacific Coast Borax Co., 68 N. J. Law, 273, 53 Atl.

The principle will be found further illustrated in cases cited in the note.148

If, however, a statute creates a wholly new right, but provides no method of enforcing it, the general rule applies that the law will not permit a right to fail for want of a remedy, or, as the maxim has it, "ubi jus ibi remedium." Thus, although the statute requiring fire escapes on apartment houses, to which we have already referred, failed to provide for any specific action to be brought by the injured party, nevertheless a tenant was permitted to recover damages for the death of his wife by a fire which destroyed the building, where it appeared that, if the fire escape had been constructed, the deceased could and probably would have escaped.1 The same principle applies to actions brought by employés injured by a violation of the act requiring the employer to provide specific safeguards not hitherto required,145 as well as to actions brought by the owners of property taken by municipal corporations, where a constitutional provision requires payment to be made, but provides for no specific remedy.148

Then there may be cases where the statute has merely given an additional remedy for a common-law right, and here we may have to determine whether the remedy was designed to be cumulative, or was to supersede that already in existence. In general, it is deemed cumulative. Thus the fact that a statute gives the right to distrain and sell cattle damage feasant will not take away the common-law remedy of an action

148 Smith v. Drew, 5 Mass. 514; McKinney v. Monongahela Nav. Co., 14 Pa. 65, 53 Am. Dec. 517; French v. Willer, 126 Ill. 611, 18 N. E. 811, 24 L. R. A. 717, 9 Am. St. Rep. 651; Hodges v. Tama County, 91 Iowa, 578, 60 N. W. 185; City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; Jessup v. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643; Commissioners of Hancock County v. Bank of Findley, 32 Ohio St. 194; Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 7 Sup. Ct. 757, 30 L. Ed. 825.

144 WILLY v. MULLEDY, 78 N. Y. 310, 34 Am. Rep. 536, Chapin Cas. Torts, 10.

145 Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338.

146 Chester County v. Brower, 117 Pa. 647, 12 Atl. 577, 2 Am. St. Rep. 713; Householder v. Kansas City, 83 Mo. 488.