by him as the direct and natural consequence of the fault of the first conductor.(*)

866. Compensation for the risk of injury.-It is a matter of some doubt whether exposure to risk, which did not result in actual injury, is a matter for compensation. In Chicago & A. R.R. Co. v. Flagg () the court said that the plaintiff could recover compensation for “the risk to which he was subjected." But in Trigg v. St. Louis, K. C. & N. Ry. Co.() Hough, J., said: “We have not been referred to any case in which a simple exposure to averted danger has been held to be a ground of recovery, and we do not think it should be, unless the exposure were wanton and produced injury." This seems the correct view; for since all circumstances subsequent to the defendant's act are admissible to show the actual injury, the fact that a risk resulted in no actual injury should prevent the allowance of damages for it, since there is no loss to be compensated.

It may, however, appear that the risk caused fright and mental suffering or nervous shock, and in such a case there is no principle upon which, if the defendant committed an actionable wrong, damages for the suffering caused by the risk should be refused. So where the plaintiff was suffering from hernia, it was held that the jury in estimating damages for wrongful expulsion from the train might consider his mental suffering caused by the risk of his injury being aggravated, though, in fact, no actual aggravation of the hernia was proved. (d)

§ 867. Consequences of exposure. The question has been much discussed, in the class of cases now under

(*) Yorton v. Milwaukee, L. S. & W. Ry. Co., 62 Wis. 367.

(°) 43 Ill. 364.

(c) 74 Mo. 147, 154.

(d) Fell v. Northern P. R.R. Co., 44 Fed. Rep. 248.

consideration, whether damages can be recovered for illness caused by exposure to the weather. The leading case upon the subject is Hobbs v. London & S. W. Ry. Co. (*) In that case, which though in form tort was treated by the court as an action of contract, it appeared that the plaintiff, with his wife and two children, took tickets to H. They were set down at E. It being late at night the plaintiff could not get a wagon or accommodation at an inn. He and his family had to walk four or five miles in a rainy night, and the wife caught cold, was laid up for some time and unable to assist her husband. Expenses were incurred for medical attendance on her. The jury found £8 for the inconvenience suffered by having to walk home, and £20 for the wife's illness and its consequences. It was held that the plaintiff could recover the £8, but not the £20, since the illness was not a natural consequence of putting passengers down at the wrong station. Cockburn, C. J., said (p. 119): "It is not the necessary consequence, it is not even the probable consequence of a person being put down at an improper place, and having to walk home, that he should sustain either personal injury or catch a cold. That cannot be said to be within the contemplation of the parties so as to entitle the plaintiff to recover, and to make the defendants liable to pay damages for the consequences." And Archibald, J., said (p. 125): "With regard to what might be the result of the walk home, the wet night, the condition of health, the state of the plaintiff herself, all those things could not have been in the contemplation of the parties when they made the contract." Blackburn and Mellor, JJ., said simply they are too remote."

(^) L. R. 10 Q. B. 111.

In McMahon v. Field (*) the Court of Appeal disapproved of this decision. Bramwell, L. J., said:

"I must say I do not see why a passenger who, by the default of the railway company, was obliged to walk home in the dark, might not recover in respect of such damage, it being an event which might not unreasonably be expected to occur."

And Brett, L. J., said:

"It was said that such damage was too remote to be recovered. Why was it too remote? There was no accommodation or conveyance to be obtained at Esher at that time of night, so that it was not only reasonable that they should walk, but they were obliged to do so. Why was it that which happened was not the natural consequence of the breach of contract? Suppose a man let lodgings to a woman, and then turned her out in the middle of the night with only her night-clothes on, would it not be a natural consequence that she would take a cold? Had Esher station been a large one, and had there been flys which might have been had, or accommodation at an inn, and the passengers had refused such and elected to walk home, I should have thought then that what happened arose from their own fault, but that was not so, yet, nevertheless, the judges who decided Hobbs v. London & S. W. Ry. Co. decided, as a matter of fact, that the cold was so improbable a consequence that it was not to be left to the jury whether it was occasioned by the breach of contract. It is not, however, necessary for me to say more than that I am not contented with it, for there is a difference between such a case and the present one."

§ 868. American rule. In this country the authority of Hobbs v. London & S. W. Ry. Co. is generally ac knowledged, at least nominally; and it has been followed to the full extent in a few jurisdictions.() But the practical effect of it has been neutralized in most jurisdictions by holding that it is of no authority in cases

(*) 7 Q. B. Div. 591, 594, 596.

() Pullman P. C. Co. v. Barker, 4 Col. 344 (an action on the case); Murdock v. Boston & Albany R.R. Co., 133 Mass. 15 (an action of contract).

Where this is the case

where the action sounds in tort. any injury directly caused by the necessary resulting exposure is a matter for compensation.(") It is said in these cases that where the breach of contract was caused by an act which was not tortious, the rule in Hobbs' case would apply; (') but in none of these cases has this distinction been applied, for the action has always been treated as sounding in tort.

§ 869. Pullman Palace Car Co. v. Barker.-In Pullman Palace Car Co. v. Barker () the plaintiff, a woman, who at the time was unwell, was travelling in one of the defendant's cars and was compelled to leave the car at night on account of the burning of the car through the defendant's negligence. She caught a cold, which, owing to the condition of her health at the time, resulted in a serious illness. She brought an action of tort. The court held that the illness was remote. Elbert, J., said:

"The exposure to the cold was the direct and necessary result of the appellant's negligence. Her subsequent illness, however, was not the result of the exposure, but the result of the exposure in her then condition. Here, then, intervenes an independent cause of her illness, a cause resting in her physical condition, appertaining exclusively to herself, with which the appellant had no concern, and to which it sustained no relations either by contract or by the general duty imposed by law upon carriers of passengers. Where physical weakness or disability is apparent to, or is brought to the attention of the carrier, undoubtedly that high degree of care which the law imposes upon him would,

(*) Alabama G. S. R.R. Co. v. Heddleston, 82 Ala. 218; Cincinnati, H. & I. R.R. Co. v. Eaton, 94 Ind. 474; Baltimore C. P. Ry. Co. v. Kemp, 61 Md. 74, 619; Heirn v. M'Caughan, 32 Miss. 17; Williams v. Vanderbilt, 28 N. Y. 217; I. & G. N. Ry. Co. v. Terry, 62 Tex. 380; Brown v. Chicago, M. & S. P. Ry. Co., 54 Wis. 342; Yorton v. Milwaukee, L. S. & W. Ry. Co., 62 Wis. 367.

(1) See especially Cincinnati, H. & I. R.R. Co. v. Eaton, 94 Ind. 474; Brown v. Chicago, M. & S. P. Ry. Co., 54 Wis. 342.

() 4 Col. 344, 347.

under certain circumstances, involve duties in reference thereto. .... Persons who are ill have a right to enter the cars of a railroad company and travel therein; as a common carrier of passengers the company has no right to prevent them, but the increased risk arising from conditions affecting their fitness to journey, certainly where they are unknown to the carrier, must rest upon their own shoulders."

The court cited Hobbs v. London & S. W. Ry. Co. in support of its opinion. The case has been severely criticised. (")

870. Brown v. Chicago, M. & S. P. Ry. Co.-The question was again elaborately discussed and the authorities examined in Brown v. Chicago, M. & S. P. Ry. Co.() In that case the plaintiffs were left at night in a place where no houses were to be seen, at a distance from their destination. They walked to their destination, which the jury found a reasonable act. The female plaintiff was pregnant at the time, and the exposure resulted in a miscarriage and illness. The court held that compensation might be recovered for the illness. Taylor, J., said (p. 357):

"Upon the findings of the jury in this case, it appears that the defendant was guilty of a wrong in putting the plaintiffs off the cars at the place they did; that in order to protect themselves from the effects of such wrong they made the walk to Mauston; that in making such walk they were guilty of no negligence, but were compelled to make it on account of the defendant's wrongful act; and that, on account of the peculiar state of health of Mrs. Brown at the time, she was injured by such walk. There was no intervening independent cause of the injury, other than the act of the defendant. All the acts done by the plaintiffs, and from which the injury flowed, were rightful on their part, and compelled by the act of the defendant. We think, therefore, it

(*) Cincinnati, H. & I. R.R. Co. v. Eaton, 94 Ind. 474; Brown v. Chicago, M. & S. P. Ry. Co., 54 Wis. 342.

(54 Wis. 342.