much length the reasons which have led me to a different conclusion, I nevertheless deem it proper to briefly state the position I have taken, and wherein I feel bound to differ from the majority of the court.

I am not prepared to say that it is not competent for the legislature to relieve the municipality from liability for injuries caused by defective footways without placing the liability elsewhere; and, while expressing no opinion on that question, yet I think it will be found upon examination that in almost every case, if not in every case, in which a city has been so relieved of such common-law liability, it has been imposed upon certain officers of the city, or other persons whose duty it was to repair such footways. And the provision, found in so many statutes, which exempts the city from liability unless certain notice is given, or claim is made, or suit is brought within a certain time, and which has been quite uniformly held to be constitutional, cannot be regarded as sustaining the validity of a statute which relieves the city from liability, because such a provision does not attempt to take away the remedy for such injuries, but only to regulate its use. This the legislature unquestionably has the right to do. But the stat

resulting from the defective condition of such footways is constitutional. It will be time enough to consider these questions when they arise in an action in which they are material. The plaintiffs have no vested right to sue the city in this action. Such liability as is now sought to be enforced never arises from any implied contract between the city and the person injured, but, in the absence of statutory exemption, it is implied by law from the duty imposed by law upon the city. Before the happening of the accident in question, the city was relieved of such implied liability by the express terms of the amendment of April 24, 1889, if such amendment is constitutional. We know of no provision of the Constitution of this state or of the United States which this amendment violates. There is great danger in declaring a law unconstitutional because of its supposed conflict with some vague principle of constitutional law. In such cases courts are in danger of substituting their idea of what the law should be for their judgment of what the law is. Caution should be exercised in declaring an act of the legislature unconstitutional and the presumptions are in favor of its validity. If, after due consideration, a reasonable doubt remains, it should be solved in favor of the act; and itute in question, and which this court is called should not be declared unconstitutional unless it be so, clearly and manifestly. Cooley, Const. Lim. pp. 218, 219. The great burden imposed upon municipal corporations by their unrestricted liability for injuries occasioned by defective streets and sidewalks has doubtless been the cause of the frequent modification or removal of such liability. The relief of the city from this unrestricted liability was obviously the main purpose and design of the legislature in enacting this amendment, and this main purpose and design should not be defeated, even if the proVision making the adjacent owners liable in certain cases should for any cause fail to be effective. "If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other." Cooley, Const. Lim. pp. 178-131, 211. From considerations of public policy, as to the sufficiency of which we have no right to determine, the legislature has, by an amendment of the charter of the city of Wilmington, limited the liability of the city to cases of defective condition of footways "caused by the city or any of its authorized agents," and we hold that the said limitation was within the power of the legislature; that the said amendment, so far as this case is concerned. is constitutional and valid; and that the court below erred in its charge to the jury, and in its refusal to charge, as stated above. The judgment below is reversed.

Pennewill, J., dissenting:

I regret very much that I cannot agree with the majority of the court in the conclusion they have reached in this case. While I have not considered it necessary to prepare any extended dissenting opinion, or give at

upon to consider and construe, seeks not only to relieve the city, but also to impose on the owner of the premises fronting upon the footways the liability for all injuries caused by defects in such footways, provided the same are not caused by the city or its authorized agents. It becomes necessary, therefore, to inquire whether the statute is constitutional and valid in so far as it undertakes to impose such liability upon such owner, and, if it be not constitutional and valid in that particular, whether it can be held to be constitutional in so far as it seeks to relieve the city.

I am clearly of the opinion that at the time of the passage of this statute there was no duty resting upon the owner of the premises to repair the footways, but that such duty rested primarily and absolutely upon the city, which had not only the power to make the repairs, but was possessed with complete supervision and control over the footways, and had all the means (by taxation, asssessment, and otherwise), to perform such duty. It is true that the owner might make such repairs, but it was discretionary, and not mandatory, and necessarily under the supervision and control of the municipality. Such owner was without the means and power possessed by the city in that behalf. It therefore not being the duty of such owner to repair the footways, it necessarily follows that it was not within the power of the legislature to impose upon him a liability to third persons for injuries caused by the defective condition of such footways; for it is most elementary that such liability cannot be imposed where there is no negligence and there can be no negligence in this sense when there is no obligation or duty. A statute which seeks to create a lia

bility irrespective of negligence has been quite universally held to be invalid upon constitutional grounds, as well as repugnant to sound reason. But it is earnestly contended that, even though the duty to repair did not rest upon the owner prior to the passage of the act which we are considering, yet it was placed upon him by this act which imposed the liability. It is urged that such duty was created or arose in some way by implication; that is, when the legislature declared by this statute that the owner should be liable, it must have necessarily followed that the same statute raised the duty, because there could not be any liability in the absence of a duty. But such a process of reasoning, I submit, is simply begging the question, and is, in effect, equivalent to say ing that there must have been a duty, other wise the enactment could not be constitutional. And, besides, if the act that imposed the liability also necessarily created the duty, then there would be no meaning in the expression, which is axiomatic, “There can be no liability when there is no duty," because the liability would always carry with it the duty.

as the legislature sought to impose upon the owner, and it was even a common-law liability. I submit that the very effort to impose the liability upon the owner clearly indicates that it was not the intention of the legisla ture to take away entirely the remedy for such injuries; and it is a fair, nay, an almost irresistible, inference, that the lawmakers would not have taken away the remedy as against the city had they known that their act would leave the party injured absolutely remediless. "The owner of the premises shall be solely responsible." The effect of that language, it is insisted, is to relieve the city which had been hitherto liable. There is nothing else in the act which could possibly give the relief contended for. Then, if that provision (the owner shall be solely responsible") is held to be invalid, what is there left upon which the city can claim exemption from liability? Cooley, in his work on Constitutional Limitations (pages 211, 212), says: "If, when the unconstitutional portion of [a statute] is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule." And if the objects sought to be accomplished “are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then, if some parts

Believing that the statute is unconstitutional in so far as it attempts to impose the liability on the owner of the premises, it remains only to inquire whether it can be held to be constitutional in so far as it would exempt the city from liability; assuming that it is competent for the legislature to so exempt the city, and that a statute having that for its sole purpose would be constitutional. Is the statute, in so far as it would relieve the city, so separable from, and independent of, that part which seeks to impose the liability on the owner, that the former can be held to be valid, even though the latter be un-are unconstitutional, all the provisions which constitutional? In this connection it is needful to keep clearly in mind the very language of the act, which is as follows: "The owner of any premises fronting upon any footways shall be solely responsible for any damage that may result to persons or property by reason of any hole, excavation, or obstruction in or upon such footways, or from any defective condition of such footways; provided, however, that such hole, excava tion, or obstruction or other defective condition of the footways aforesaid is not caused by the city or any of its authorized agents." It will be noted that the city is not expressly exempted, by the terms of the statute, but only by implication, by making the owner solely responsible. The important question that arises is, Did the legislature, at the time of the enactment of the statute in question, intend to relieve the city of liability, if the same could not be placed on the owner? Or did the lawmaking body merely intend to shift the responsibility from the city to the owner? If the latter, then it is inconceivable that it should have intended that the statute, in so far as it exempted the municipality, should be operative, even though the other part should be invalid. It must be remembered that prior to the passage of the statute the city was liable for such injuries

are thus dependent, conditional, or connected must fall with them." And in a note (page 212 of the same authority) the following language is used: "It must be obvious, in any case where part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allowable in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case we know the legislature designed the whole act to have effect, and we should sustain it if possible; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the Constitution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part which was void." I do not believe the legislature would have been willing that the act in question, in so far as it, by implication, relieved the city of liability, should be sustained if that part which imposed the

Liability on the owner were held void. In | hold that the former liability of the city for my opinion, therefore, the act is wholly un- injuries caused by defective footways is not constitutional and void, and accordingly I'in any wise affected thereby.

VERMONT SUPREME COURT.

Gilson v. Delaware & H. Canal Co. 65 Vt. | more tenable, for an independent intervening 215; Stevens v. Dudley, 56 Vt. 158; Ellis v. force would not be so clearly apparent. Cleveland, 55 Vt. 358.

The causal connection between the defendant's negligent act and the plaintiff's injury is interrupted by the interposition of a new and independent force or act.

The plaintiff's injury was caused by the assault of the dog upon her. That assault was a new and independent and intervening force that superseded the shot, and was no part of the shot itself.

jury.

The test is: Was the intervening efficient The causal connection is broken because cause a new and independent force acting in the intervening force or act made the origiand of itself in causing the injury, and su-nal act, otherwise innocuous, operative to inperseding the original wrong complained of so as to make it remote in the chain of causation; though it may have remotely contributed to the injury as an occasion or condition-an incident?

Holmes v. Fuller, 68 Vt. 207.

The inquiry is: Was the act complained of causal or purely casual! If the injury had come directly upon the plaintiff from fright at the shot, then her claim would be

when he was fired upon that the shot is to be regarded as a new and independent event rather than a continuation of the original affray. Cluff V. Mutual Ben. L. Ins. Co. 13 Allen, 308.

Sturgis v. Kountz, 165 Pa. 358, 27 L. R. A 390; Renner v. Canfield, 36 Minn. 90; Mitchell v. Rochester R. Co. 151 N. Y. 107, 34 L. R. A. 781.

Rowell, J., delivered the opinion of the court:

Dow, the intestate, a poor gunner, as heknew, with eyesight much impaired, knownatural and proximate consequence of his acts. Wilhite v. Speakman, 79 Ala. 400.

And the manner of the tying and the time the horse was left in the field are proper circumstances to be considered by the jury in an action for damages for the injury, not on the question of negligence, but in determining whether the death of the horse was the natural and proximate consequence of his having thus been tied and left. Ibid.

So, in Derry v. Flitner, 118 Mass. 131, in which the owner of a sea-wall gave the owner of several vessels employed in building it the right to lay his vessels at the wall as a place of safety in case of storm, and the master of another vessel without permission placed his vessel behind the wall and refused to move it when requested, in consequence of which the builder lost two vessels in a storm, it was held that as the storm causing the loss was not an uncommon one, but might have been reasonably expected | tained, where the boy, in endeavoring to keep in that climate, the master of the vessel refusing to move was liable for his wrongful act causing the loss of the two vessels.

So, one who, having had a quarrel with a boy in a street, takes up a pickax and follows him into a store where he has fled, is liable to the owner of the store for the damages sus

out of his reach, runs against and knocks out the faucet from a cask of wine, by means of which a quantity of the wine runs out and is. wasted. Vanderburgh v. Truax, 4 Denio, 464,

III. In case of acts directly malicious or wilful. 47 Am. Dec. 268.

The rule above stated is also applicable where the act causing the injury is directly malicious or wilful, whether or not it amounts to a violation of law or legal duty.

Thus one who wilfully and intentionally directs a stream of water from a hose against a team of horses fastened to a post in the street, in front of his premises, whereby they are frightened, and break loose, and run away through the street, running against a horse and wagon belonging to a third person, causing injury, is liable to such third person for such injury. Forney v. Geldmacher, 75 Mo. 113, 42 Am. Rep.

388.

And the wrongful act of a person in loosening the shoe of a horse and pricking his foot with intent to induce the owner to believe that the blacksmith who shod him had done the work

badly, and so injure him in his trade, whereby be lost the custom of the owner, has a sufficiently close connection with the injury to the blacksmith to entitle him to maintain an action against the person who loosened the shoe for the injury sustained. Hughes v. McDonough, 43 N. J. L. 459, 39 Am. Rep. 603.

And the seizing and contining of a horse by the owner of a field which did not have a law

ful fence, when the horse strayed into it, are wrongful and constitute a trespass rendering him liable for the injury caused thereby; and where the owner of the field ties the horse thus seized and confined, to a tree with a rope and leaves him until the next day, when he is found dead, appearing to have been choked to death, be is liable for the injury done, including the destruction of the horse, if its death was the

And the act of a brakeman upon a railroad train in seizing a lad about ten years of age and forcibly putting him on board the train and carrying him against his will for 5 miles is. a trespass rendering him liable for injuries to the lad caused by his returning home on foot, running most of the way, and being taken sick and becoming permanently crippled in both legsthereby, and if the conductor of the train personally directed or consented to the acts of the brakeman they are joint trespassers, and a recovery may be had against both for the sickness. and injury if they resulted directly from such acts. Drake v. Kiely, 93 Pa. 495.

And where a person gets upon a locomotive, occupying a dangerous and improper position in front of and under the headlight, and one of the railroad company's servants pushes him off while the engine is moving at a rate of speed rendering it dangerous for him to get off, and he is injured thereby, the act of pushing him off the engine is the proximate cause of his injury, and his wrong in getting there is not proximate to the injury so as to preclude his right to reCarter v. Louisville, N. A. & C. R. Co. covery. 98 Ind. 552, 49 Am. Rep. 780.

So, the act of the persons in charge of a railway train in running it over a hose placed by a fireman across the track to obtain water from a

hydrant for use on burning buildings upon theother side of the track, thereby severing the hose and stopping the water so that the buildings were burned before the hose could be repaired, is to be regarded as the direct and efficient cause of such burning, rendering the railroad company responsible therefor, where the firemen could not otherwise obtain a supply of water, and the fire was diminished and would