§ 871. GENERAL CONCLUSIONS. 653 must be held that the injury to Mrs. Brown was the direct result of the defendant's negligence, and that such negligence was the proximate and not the remote cause of the injury. We can see no reason why the defendant is not equally liable for an injury sustained by a person who is placed in a dangerous position, whether the injury is the immediate result of a wrongful act or results from the act of the party in endeavoring to escape from the immediate danger. . . . . The defendant, by its negligence, placed the plaintiffs in a position where it was necessary for them to act to avoid the consequences of the wrongful act of the defendant, and, acting with ordinary prudence and care to get themselves out of the difficulty in which they had been placed, they sustained injury. Such injury can be, and is, traced directly to the defendant's negligence as its cause; and it is its proximate cause, within the rules of law upon that subject." (") § 871. General conclusions.-The objections to recovery made in Hobbs v. London & S. W. Ry. Co. and the cases following it seem to be two: first, that the consequence is remote; second, that it was not contemplated at the time the contract was entered into. To the first of these objections the reasoning of the court in the case of Brown v. Chicago, M. & S. P. Ry. Co., just quoted, seems to be a conclusive answer. The defendant has placed the plaintiff in a difficult position, from which he must escape by the best means possible. If the means of escape he adopts are reasonable ones, all loss caused directly by the adoption of such means is the proximate result of the defendant's wrong, and compensation is therefore recoverable for it. To the second objection there appear to be two answers. In the first place, the defendant's act is a tort, and although the relation between the parties probably began in a contract, (*) This is an application of the principle so universally acknowledged, that where the plaintiff takes proper means to avoid the consequences of defendant's act (e.g. tries to avoid further injury by getting to her destination as soon as possible), and by doing so, enhances the damages, the defendant is still responsible. See § 215. yet it is not necessary to invoke the contract in order to recover. The rule in Hadley v. Baxendale, therefore, even if we assume that that case introduced a distinction between contract and tort, does not apply. But even if the action is upon the contract, as it was in the case of Murdock v. Boston & A. R. R. Co., (*) the objection would not seem to be sound. This appears plainly upon consideration of the facts of Pullman P. C. Co. v. Barker, in which the court refused recovery. The plaintiff was actually driven from the car by the defendant's negligence, half-clad, on a cold night; and illness naturally and almost necessarily followed. To say that such a consequence was remote, or to exclude recovery for it because the fact of the plaintiff's physical infirmity was not known to the defendant's agent when she purchased her seat, is indeed, in the language of the Supreme Court of Wisconsin,() a decision" supported by the principles of neither law nor humanity." Upon the whole, these cases seem to illustrate very strongly a point upon which too much insistance cannot be laid; that the case of Hadley v. Baxendale introduced no new rule of damages. For proximate and natural consequences of the defendant's act, whether it be a breach of contract or a tort, a recovery can always be had; the only meaning of the rule with regard to the contemplation of the parties is that in contract a particular species of proof as to special consequences is often available which is not so in tort. § 872. Avoidable consequences.-An important consideration in such cases is whether the plaintiff might not have avoided the exposure by reasonable efforts. If a journey on foot to the place of destination is not neces (*) 133 Mass. 15, supra. () In Brown v. Chicago, M. & S. P. Ry. Co., 54 Wis. 342, 360. § 872. AVOIDABLE CONSEQUENCES. 655 sary or reasonable, of course any injury contracted by reason of the journey is due to the plaintiff's own folly, and is remote from the defendant's act. So where the plaintiff should have obtained shelter for the night at the place where he was left by the defendant, he cannot recover damages for injury caused by walking to his destination.(*) And so also, where a conveyance can be procured.() In the latter case the plaintiff, a physician, walked home instead of waiting for the next train, and contracted an illness from the exposure. Walker, J., said: "Had he procured a carriage and horses to make the trip, the company would no doubt have been liable for reasonable compensation for its use and for a driver, or had he awaited the next train, and gone on it, he would have been entitled to nominal damages at least, and could have recovered for all such actual damages as he could have proved in the way of necessarily increased expenses while awaiting the arrival of the train, and loss by being unable to visit patients who required his medical advice, or injury or loss he may have actually sustained in his business, caused by the delay; but he had no right to inflict injury upon himself to enhance damages he sought to recover from the road. Having been wrongfully left by the train, if he supposed his business was so urgent as to prevent his awaiting the next train, he should have used all precautions in so making the journey as to produce the least injury to himself that reason would dictate. He had no right to act with recklessness or wantonly, and then claim compensation for the injury thus inflicted. Had he attempted to walk to the next station barefoot, and his feet had been frozen, would any sane man believe he could have recovered for such injury? We presume not, because all would say it was a voluntary wantonness. Then, if two other modes presented themselves, almost perfectly safe from injury, as was the case here, and another, attended with great hazard from the exposure to extreme cold and over-exertion, as all reasonable persons must know, why should he be rewarded for dis (*) Louisville, N. & G. S. R.R. Co. v. Fleming, 14 Lea 128. Indianapolis, B. & W. Ry. Co. v. Birney, 71 Ill. 391. regarding his safety and the consequent injury? The injury by the journey on foot was unnecessarily incurred-was not the necessary consequence of being left by the train, but was unnecessarily, if not recklessly, induced. It was the improper, voluntary act of the appellee, and for it he has no right to recover." § 873. Baggage.-If baggage is lost which the carrier takes charge of without remuneration, the passenger can only recover damages for the loss of what is usually carried as baggage, including such an amount of money as is necessary and proper for the journey under the circumstances of the case. He cannot, for instance, recover for jewelry which was carried in his trunk as merchandise. (*) In Fairfax v. New York C. & H. R. R. R. Co.,() the plaintiff's baggage was delivered to the defendant by a connecting line by mistake for another line. Upon arrival in New York the plaintiff found the defendant had brought the trunk to New York, but on demanding it was unable to find it. In the plaintiff's trunk were thirty-nine sovereigns. The jury were told to allow the value of these if they found the amount was proper, reasonable, and necessary, and in deciding this, to take into consideration the position and circumstances of the plaintiff, the length and character of his journey, the contingencies and accidents that might naturally arise, and the fact that he was in a foreign country, and to give the plaintiff the full value of his clothing for use to him in New York, and not merely what it could be sold for in money. This was held to be correct. "No other rule would give him a compensation for his damages. This rule must be adopted, because such clothing cannot be said to have a market price, and it would not sell for what it was really worth." () Michigan C. R.R. Co. v. Carrow, 73 Ill. 348; Richards v. Westcott, 2 Bosw. 589. (°) 73 N. Y. 167, 172. See § 251. CHAPTER XXIX. THE MEASURE OF DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. § 874. Nature of contract. 876. Reasonable regulations. contract. 879. Compensation only for natural and contemplated consequences. 880. Notice. 881. Consequential loss. 882. Commercial messages-Loss of intended purchase. 883. Loss of intended sale. 884. Error in transmitting amount of goods. 885. In transmitting price. § 886. In transmitting conditions of purchase or sale. 887. Loss of a debt. 888. Speculative loss. 889. Uncertain profits not recoverable. 890. Messages not understoodCipher messages. 891. Authorities extending liability -Direct loss. 892. What is the direct loss. 893. Price of the message-Nominal damages. 894. Mental suffering. 895. Avoidable consequences. § 874. Nature of contract.-Suits against telegraph companies present many peculiar features, both in relation to the question of liability, and of the extent of recovery. A telegraph company is an agency (usually chartered by the State, and clothed by it with the powers of eminent domain) for conveying intelligence by electricity. A telegraph line might, of course, be operated by an individual, or a partnership, but usually there is a charter. Under this, the company is obliged to take all messages, for which it is entitled to establish a tariff of charges. It thus stands in a double relation, analogous to that occupied by common carriers of goods and passengers. It |