tween the parties themselves they may in some cases be prohibited from denying the marriage relation, or, at least its validity or effect. Thus, it has been held that where persons have represented themselves to be married, or have assumed the relation of husband and wife, cohabiting and holding themselves out to the public as such, though not in fact married, they will be conclusively presumed to sustain such relation to each other and will not be permitted to disprove or deny the marriage as between themselves when either is seeking to disturb or defeat rights which may have been acquired by the other, either directly or indirectly, on the faith of the marriage.124

§ 2494. Evidence in general-Weight.-The extent to which the evidence must go, and the weight to be given particular evidence must depend largely upon the issues and the nature and circumstances of the case. In civil cases competent evidence that satisfies the court or jury, as the case may be, that there was a marriage is generally sufficient,125 but, owing in some instances to the different presumptions that obtain under different circumstances stronger evidence is required in some cases than in others. Thus, when a man and woman have contracted marriage in due form, the law will require clear proof to remove the presumption that such contract is valid.128 So it has been held that the uncorroborated testimony of the petitioner or the admissions of the defendant are not of sufficient weight of themselves for a court to grant relief in nullity suits for impotency.12 And it has been held that to maintain a bill of annulment of marriage on the alleged ground that assent to the marriage was obtained by fraud, there must be satisfactory evidence sustaining the charge, irrespective of the declarations, confessions and admissions of the parties.128 Admissions as to one's own marriage have been held entitled to more weight than denials.129

124 Johnson v. Johnson, 1 Cald. (Tenn.) 626; Deeds v. Strode, 6 Idaho 317, 96 Am. St. 267, note.

125 Martin v. Martin, 22 Ala. 86; see generally, for evidence held sufficient to establish marriage, the following recent cases: Davis' Estate, In re, 204 Pa. St. 602, 54 Atl. 475; Mullaney v. Mullaney, (N. J.) 54 Atl. 1086; Summerville v. Summerville, 31 Wash. St. 411, 72 Pac. 84. Evidence showing a common law marriage not overcome by proof of

a subsequent ceremonial marriage; Shank v. Wilson, 33 Wash. St. 612, 74 Pac. 812.

128 Wilkie v. Collins, 48 Miss. 497; Teter v. Teter, 88 Ind. 494.

127 Lorenz v. Lorenz, 93 Ill. 376; Wiseman v. Wiseman, 89 Ind. 479. 128 Dawson v. Dawson, 18 Mich. 335.

129 Greenawalt v. McEnelley, 85 Pa. 852; Teter v. Teter, 101 Ind. 129, 51 Am. R. 742.

§ 2495. Generally.-In this chapter it is proposed to state the general rules in regard to negligence, in so far at least as they relate to questions of evidence, and then to show their application to particular cases or classes of cases, so far as they are not elsewhere treated. Labored attempts have been made to define negligence, but no one definition has been universally accepted as entirely accurate and helpful. Without attempting to give an entirely accurate definition, we

1 One of the most careful and thorough attempts to define and analyze the term is found in 16 Ency.

of Law (1st ed.) 387, et seq.; see also, Shearman & Redfield Negligence, § 1-5; Smith Law of Negli

may describe it in a general way as the absence of care according to circumstances, or, in other words, the failure to exercise such care as the circumstance demand, by doing what there is a duty to leave undone or failing to do what there is a duty to do. If the duty is owing to the party injured and the injury proximately results from such breach of the duty there is usually actionable negligence for which damages may be recovered unless the injured party was himself guilty of contributory negligence. But if the injury was purposely inflicted or there was such a reckless disregard of consequences as to evince a willingness to inflict it under such circumstances that it was likely to be a proximate result there would usually be wilfullness rather than mere negligence, and contributory negligence would not, ordinarily at least, be a defense.

2

§ 2496. Breach of duty.-The right to recover in cases of negligence rests upon a breach of a legal duty, and where there is no duty there is no cause of action. It is, therefore, incumbent upon the plaintiff to make it appear that there was a legal duty. This general doctrine is illustrated in many cases. But it is not necessary, in order to establish the legal duty, to do more than prove the facts from or out of which the duty springs, for where the necessary facts are established the law will fix the duty. The duty violated, however, must be one that was owing to the plaintiff or injured party by the defendant at the time and place of the injury,3 and in order to establish negligence it must generally be shown that the defendant did what he ought not to have done, or omitted something that it was his duty to do.

$2497. Proximate cause.-There is no liability for a pure accident, nor is the defendant liable for negligence which was not the

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gence, 1; Beven Negligence 1, et seq.; Baltimore &c. R. Co. v. Jones, 95 U. S. 439; Blyth v. Birmingham Waterworks Co., 25 L. J. Exch. 212, 11 Exch. 781; Cooley Torts (1st ed.) 630.

2 Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Tourtellot v. Rosebrook, 11 Metc. (Mass.) 460, 463; Fuller v. Citizens' Nat. Bank, 15 Fed. 875; Oyshterbank v. Gardner, 17 Jones & S. (N. Y.) 263; Columbus &c. Co. v. Troesch, 68 Ill. 545; Norfolk &c. Co. v. Ferguson, 79

Va. 241; Frech v. Philadelphia, 39 Md. 574; Schultz v. Pacific R. Co., 36 Mo. 13; Button v. Frink, 51 Conn. 342; Faris v. Hoberg, 134 Ind. 269, 274, 33 N. E. 1028; Gaston v. Bailey, 14 Ind. App. 581, 584, 43 N. E. 254.

Cleveland &c. R. Co. v. Stephenson, 139 Ind. 641, 37 N. E. 720; Murphy v. Brooklyn, 118 N. Y. 575, 23 N. E. 887; Biggs v. Huntington, 32 W. Va. 55, and authorities cited in last preceding note.

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proximate cause of the injury complained of. This, then, is another element that must be shown in order to entitle the plaintiff to recover for negligence. Negligence may of course, be the proximate cause of an injury if it is the efficient cause although it is not the nearest and most immediate in point of time. A responsible agent intervening, however, may cut off the line of causation, and, in most instances where no such result could reasonably have been foreseen or expected from the alleged negligence or if it is a mere condition and not an efficient cause there is no liability. The question as to what was the proximate cause of the injury in a particular case, as will hereafter be shown, is usually, but not always, one of fact for the jury.

7

6

§ 2498. Presumptions.-It is frequently said that negligence is not presumed from the mere happening of an accident, and this is true as a general rule in a general sense; but negligence may be pre

&c. R. Co. v. Krapf, 143 Ind. 647, 36
N. E. 901; Henby v. Grand Ave. R.
Co., 113 Mo. 525, 21 S. W. 214;
Grant v. Enfield, 42 N. Y. S. 107;
Rea v. St. Louis &c. R. Co., (Tex.
Civ. App.) 73 S. W. 555.

5

Check v. Oak Grove Lumber Co., (N. Car.) 46 S. E. 488, 489, 490, quoting Elliott R. R., § 711; Dull v. Cleveland &c. R. Co., 21 Ind. App. 571, 52 N. E. 1013; Evansville &c. R. Co. v. Welch, 25 Ind. App. 308, 58 N. E. 88; McGahan v. Indianapolis Nat. Gas Co., 140 Ind. 335, 37 N. E. 601; Lake Erie &c. R. Co. v. Mikesell, 23 Ind. App. 395, 55 N. E. 488; Elliott v. Allegheny &c. Light Co., 204 Pa. St. 568, 54 Atl. 278; Smart v. Kansas City, 91 Mo. App. 586; State v. Baltimore &c. R. Co., 58 Md. 482; Wabash R. Co. v. Coker, 81 Ill. App. 660.

"See, for instance, Cole v. German Sav. &c. Soc., 124 Fed. 113, 63 L. R. A. 416, and note; Claypool v. Wigmore, (Ind. App.) 71 N. E. 509, and numerous authorities cited.

'Thus, as will hereafter be shown, even the violation of a statute or

city ordinance, though negligent in

itself, if it had nothing to do with the accident, as where a bell was not rung on an engine at a crossing but the plaintiff already had ample warning and knowledge of the approaching engine, is not a proximate cause of the injury.

Joliet Steel Co. v. Shields, 146 Ill. 603, 34 N. E. 1108, 1109; Merritt v. Richey, 127 Ind. 400, 27 N. E. 131; Wabash &c. R. Co. v. Locke, 112 Ind. 404, 14 N. E. 391; Kincaid v. Oregon &c. R. Co., 22 Ore. 35, 29 Pac. 3; Bohn v. Chicago &c. R. Co., 106 Mo. 429, 17 S. W. 580; Colbourn v. Wilmington, (Del.) 56 Atl. 605; Seybolt v. New York &c. R. Co., 95 N. Y. 562; Harris v. Perry, 89 N. Y. 308, 315; Short v. New Orleans &c. R. Co., 69 Miss. 848, 13 So. 826; Donovan v. Hartford St. R. Co., 65 Conn. 201, 32 Atl. 350; Goshorn v. Smith, 92 Pa. St. 435; Ford v. Anderson, 139 Pa. St. 261, 21 Atl. 18; Fenderson v. Atlantic City R. Co., 56 N. J. L. 708, 31 Atl. 767; Tarpnell v. Red Oak Junction, 76 Iowa 744, 39 N. E. 884; Vo. I, § 94.

sumed in a proper case from the circumstances of the so called accident, and is usually presumed where the circumstances are such that the doctrine res ipsa loquitur applies. This doctrine, or rule, however, seldom applies except where some such relation as that of carrier and passenger exists. Yet it is not confined entirely to such cases.10 The rule has been applied in cases where objects within the exclusive control of the defendant have fallen upon and injured the plaintiff,11 and in a number of somewhat similar cases.12 In the absence of anything to the contrary, the presumption generally is that persons and corporations have done or will do their duty.13 So, in some jurisdictions, it is held that from the disposition of men to avoid injury to themselves and the love of life and instinct of self-preservation, the presumption in the absence of anything to the contrary, is against contributory negligence,1 and this is one reason that, in many jurisdic

It has been fully treated, as applicable to such cases, in the chapter on carriers; see also, Vol. I, § 94, n. 8; that it is not so often applicable in other cases, see, Talley v. Beever, (Tex. Civ. App.) 78 S. W. 23; Bahr v. Lombard &c. Co., 24 Vroom. (N. J.) 233; Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. St. 353, 42 Atl. 707; Stearns v. Ontario Spinning Co., 184 Pa. St. 519, 39 Atl. 292; Huff v. Austin, 46 Ohio St. 386; Walker v. Chicago &c. R. Co., 71 Iowa 658, 33 N. W. 224; Huey

V.

Gahlenbeck, 121 Pa. St. 238; Weideman v. Tacoma R. Co., 7 Wash. St. 517, 35 Pac. 414.

10 For elaborate notes upon the subject, see Barnowski v. Helson, 89 Mich. 523, 15 L. R. A. 33; Long v. Pennsylvania R. Co., 147 Pa. 343, 30 Am. St. 732, 736; Fleming v. Pittsburgh &c. R. Co., 158 Pa. 130, 38 Am. St. 835, 837.

"Travers v. Murray, 84 N. Y. S. 558; Vincett v. Cook, 4 Hun (N. Y.) 318; Klitzke v. Webb, (Wis.) 97 N. W. 901; see also, Western Un. T. Co. v. State, 82 Md. 293, 33 Atl. 763;

Mulcairns v. Janesville, 67 Wis. 24; Volkmar v. Manhattan R. Co., 134 N. Y. 418, 31 N. E. 870; Denver Consolidated Elec. Co. v. Simpson, 21 Colo. 371, 41 Pac. 499; Kearney v. London &c. R. Co., L. R. 6 Q. B. 759.

12 See, Thomas v. Western U. Tel. Co., 100 Mass. 156; Brush Electric &c. Co. v. Kelley, 126 Ind. 220, 25 N. E. 812; Dixon v. Pluns, 98 Cal. 384, 33 Pac. 268; Snyder v. Wheeling &c. Co., 43 W. Va. 661, 28 S. E. 733; Mitchell v. Nashville &c. R. Co., 100 Tenn. 329, 45 S. W. 337; Carmody v. Boston &c. Co., 162 Mass. 539, 39 N. E. 184; Boyd v. Portland &c. Elec. Co., 40 Ore. 126, 68 Pac. 810, 57 L. R. A. 619, and note.

13 Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259; St. Louis &c. R. Co. v. Weaver, 35 Kans. 412, 424, 11 Pac. 408; Huff v. Austin, 46 Ohio St. 386, 21 N. E. 864; Terre Haute &c. R. Co. v. Becker, 146 Ind. 202, 45 N. E. 96. And that an employe was competent. Louisville &c. R. Co. v. Bates, 146 Ind. 564, 45 N. E. 108.

14 Texas &c. R. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104; Allen v.