Minor v. Sharon , 112 Mass. 477 ( 1873 )

■Morton, J.

It must be assumed that the jury found, under the instructions given them, that the defendant, being the owner of a tenement, knowing that it was so infected by the small-pox as to be unfit for occupation and to endanger the health and lives of the occupants, and concealing this knowledge from the plaintiff to induce him to hire it, leased it to the plaintiff; that the plaintiff and his children took the disease by reason of the infection of the tenement; that the plaintiff was ignorant of its dangerous condition, and that no negligence of his contributed to their taking the disease. Upon these facts the defendant is guilty of actionable negligence, and is liable for whatever injury the plaintiff has sustained by reason thereof.

In Sweeny v. Old Colony Newport Railroad Co. 10 Allen, 368, 372, the rule is stated to be, that “ in order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests.” Negligence consists in doing or omitting to do an act in violation of a legal duty or obligation. In this case the defendant knew that the tenement was so infected as to endanger the health and life of any person who might occupy it. It was a plain duty of humanity on his part to inform the plaintiff of this fact, or to refrain from leasing it until he had used proper means to disinfect it. If the defendant had invited any person to enter his tenement, knowing that there was a dangerous obstruction or pitfall in it, he would be liable; the negligence was no less gross because the danger was a secret one which could not be detected by inspection or examination. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. French v. Vining, 102 Mass. 132.

The defendant contends that the injury complained of is not of such a nature as to give a right of action, “ because in diseases which are usually designated as contagious, the connection between the origin of the disease and the disease itself is not a matter cognizable by our senses,” and “ the source from which and the manner in which contagion is communicated is too uncertain and unsusceptible of proof to form the foundation for an action.” In the trial of cases, as in the ordinary affairs of life, it is often impossible to establish the connection between cause and effect with absolute certainty. But evidence which produces a moral conviction is sufficient. It is upon such convictions that men act in the important concerns of life, and no greater certainty is required or attainable in the administration of the law. The defendant’s negligence was an adequate cause of the injury to the plaintiff. The evidence reasonably satisfied the minds of the jury that it was the operating cause, and the defendant cannot escape the consequences of his negligence upon the plea that the connection between cause and effect cannot be proved beyond possibility of doubt.

The defendant also contends that the presiding judge erred in declining to instruct the jury that if the plaintiff Ezra Minor did not cause his children to be vaccinated within a reasonable time after he came with them into the Commonwealth, the minor plaintiffs could not recover. Upon this subject, the judge instructed the jury that it was the duty of the plaintiff to “ take all such precautions as a man of ordinary care and prudence would take under like circumstances; ” that it was for the jury to say whether vaccination was a proper precaution, and if so, whether he procured his children to be vaccinated within a reasonable time and by a suitable person. These instructions were sufficient. We cannot say, as matter of law, that under all circumstances vaccination is a necessary precaution to be taken by a person exposed to the small-pox. It is a question of fact, and was properly left to the jury. The argument of the defendant that the plaintiff, in neglecting to have his children vaccinated, was guilty of a violation of law, has no foundation in the facts of the case. He caused them to be vaccinated eight days after he arrived in this country, and it does not appear that he was guilty of any violation of the statute. Gen. Sts. c. 26, § 27.

Upon the whole case we are of opinion, that, upon the facts found by the jury, the plaintiffs are entitled to recover, and that the instructions given at the trial were sufficiently favorable to the defendant. Exceptions overruled.