As a corollary to the view that an institution is not exempt, oy reason of its charitable character, for the negligence of its officers or agents, but, in the case of a beneficiary, is exempt where it has exercised reasonable care in the selection of competent servants, such institutions have been held liable for the negligent acts of their employees toward persons not the beneficiaries of the charity. And such an institution is liable to an employee for failure to perform a nondelegable duty.22

21

Under certain circumstances a charitable institution may be exempt from liability on the ground that it is discharging a governmental function.23

The rule that an institution is exempt from liability by reason of its charitable character does not extend to a case of an injury by the negligence of one whose only connection with the charity was Goodman v. Brooklyn Hebrew Orphan Asylum (1917) 178 App. Div. 682, 165 N. Y. Supp. 949.

21 See Thomas v. German General Benev. Asso. (1914) 168 Cal. 183, 141 Pac. 1186; Van Ingen v. Jewish Hospital (1917) 99 Misc. 655, 164 N. Y. Supp. 832, affirmed in (1918) 182 App. Div. 10, 169 N. Y. Supp. 412; Kellogg v. Church Charity Foundation (1908) 128 App. Div. 214, 112 N. Y. Supp. 566; Basabo v. Salvation Army (1912) 35 R. I. 22, 42 L.R.A.(N.S.) 1144, 85 Atl. 120; Hospital of St. Vincent v. Thompson (1914) 116 Va. 101, 51 L.R.A.(N.S.) 1025, 81 S. E. 13.

22 McInerny v. St. Luke's Hospital Asso. (1913) 122 Minn. 10, 46 L.R.A. (N.S.) 548, 141 N. W. 837; Armendarez v. Hotel Dieu (1912) Tex. Civ. App. 145 S. W. 1030; Hotel Dieu v.

Armendarez (1914) Tex. Civ. App., 167 S. W. 181.

23 A state is not liable in damages for the negligence of the officers and attendants of a hospital maintained by the state for the care of the indigent insane. Smith v. State (1915) 169 App. Div. 438, 154 N. Y. Supp. 1003.

So, in the case of a hospital maintained by the city with such aid as might be derived from donations and the sums received from paying patients, the trustees as a corporation are no more liable for the negligence of their officers and agents than the city would be. Benton v. City Hospital (1885) 140 Mass. 13, 54 Am. Rep. 436, 1 N. E.

836.

In Noble v. Hahnemann Hospital (1906) 112 App. Div. 663, 98 N. Y. Supp. 605, it was held that a hospital was not liable for injury resulting from a collision between the plaintiff's vehicle and an ambulance belonging to the hospital, on the ground that the hospital in running its ambulance under a contract with the city and in response to a call from the police department was performing a duty imposed upon the city as one of its governmental functions. But a contrary conclusion was reached upon a smilar state of facts in Van Ingen v. Jewish Hospital (1917) 99 Misc. 655, 164 N. Y. Supp. 832, affirmed in (1918) 182 App. Div. 10, 169 N. Y. Supp. 412.

that he was employed in the building the net income of which was directed by the founders of a trust to be used for a fixed charitable purpose. 24 But it may be held liable to the extent of the income derived therefrom.25

In conclusion, attention may be called to the fact that it has frequently been held that an institution devoted to charity is none the less entitled to the various degrees of immunity enjoyed by charitable institutions under the rules of law above discussed because in the particular case it has received payment from the beneficiary, money so received not being regarded as a quid pro quo, but as a contribution to the funds of the institution.26

Winnemore v. Philadelphia (1902) 18 Pa. Super. Ct. 625.

So, in Holder v. Massachusetts Horticultural Soc. 211 Mass. 370, 97 N. E. 630, where a charitable corporation owning a building let a part of the building to a tenant for purposes entirely disconnected from those for which it was chartered, it was held that it was not exempted from liability for an injury to a man in its employ caused by the negligence of its superintendent while the superintendent and the employee were engaged in doing work for the benefit of the tenant in accordance with the contract of the corporation with the tenant. 25 Gamble v. Vanderbilt University (1918) 138 Tenn. 616, L.R.A. 1918C, 875, 200 S. W. 510.

26 Powers v. Massachusetts Homœopathic Hospital (1899) 101 Fed. 896, affirmed in (1901) 65 L.R.A. 372, 47 C. C. A. 122, 109 Fel. 294; Parks v. Northwestern University (1905) 121 Ill. App. 512, affirmed in (1905) 218 Ill. 381, 2 L.R.A. (N.S.) 556, 75 N. E. 991, 4 Ann. Cas. 103; Jensen v. Maine Eye & Ear Infirmary (1910) 107 Me. 408, 33 L.R.A. (N.S.) 141, 78 Atl. 898; McDonald v. Massachusetts General Hospital (1876) 120 Mass. 432, 21 Am. Rep. 529; Downes v. Harper Hospital (1894) 101 Mich. 555, 25 L.R.A. 602, 45 Am. St. Rep. 427, 60 N. W. 42; Adams v. University Hospital (1907) 122 Mo. App. 675, 99 S. W. 453; Schloendorff v. Society of New York Hospital (1914) 211 N. Y. 125, 52 L.R.A. (N.S.) 505, 105 N. E. 92, Ann. Cas. 1915C, 581; Collins v. New York Post Graduate Medical School (1901) 59 App. Div. 63, 69 N. Y. Supp. 106; Ward v. St. Vincent Hospital (1898) 23 Misc. 91, 50 N. Y. Supp. 466; Cunningham v. Sheltering Arms (1908) 61 Misc. 501, 115 N. Y. Supp. 576, affirmed in (1909) 135 App. Div. 178, 119 N. Y. Supp. 1033; Hamburger v. Cornell University (1917) 99 Misc. 564, 166 N. Y. Supp. 46; Conner v. Sisters of the Poor (1900) 7 Ohio N. P. 514, 10 Ohio S. & C. P. Dec. 86; Taylor V. Protestant Hospital Asso. (1911) 85 Ohio St. 90, 39 L.R.A. (N.S.) 427, 96 N. E. 1089, 1 N. C. C. A. 438; Gable v. Sisters of St. Francis (1910) 227 Pa. 254, 136 Am. St. Rep. 879, 75 Atl. 1087, 2 N. C. C. A. 381; Lindler v. Columbia Hospital (1914) 98 S. C. 25, 81 S. E. 512; Morrison v. Henke (1916) 165 Wis. 166, 160 N. W. 173; Bishop Randall Hospital v. Hartley (1916) 24 Wyo. 408, 160 Pac. 385.

It is immaterial that the hospital is fully compensated for the serv-. ices rendered; since even if full compensation is paid it does not necessarily follow that the patient receives no benefit from charity. Duncan v. Nebraska Sanitarium & Benev. Asso. (1912) 92 Neb. 162, 41 L.R.A. (N.S.) 973, 137 N. W. 1120, Ann. Cas. 1913E, 1127. E. S. O.

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

The duty of the occupier of premises to persons coming thereon by invitation is not necessarily to make the place reasonably safe, but he has the alternative course open to him of giving proper notice of the unusual danger; and if he does, he cannot be held guilty of negligence with regard to safeguarding his visitor from damage.

In the absence of special information of a specific danger, an invitee is entitled to regard the usual tacit business invitation as one to visit the premises in the condition in which premises of that nature usually are if reasonably kept as such, at the time he visits them.

The degree of care required of the owner of premises toward an invitee may be qualified by express or implied agreement, or by the circumstances of the invitation, which include the character of the place or thing which the visitor is invited to use, the nature of the use which he is invited to make of it, and the conditions and circumstances under which such use is invited to be made. Per Griffith, Ch. J.

The fact that the rails of a railway crossing a roadway, used by persons coming upon the defendant's premises on business, projected about 3 inches above its surface, so that, while plaintiff's decedent was attempting to cross them with a heavily loaded lorry at a place where two lines of railway converged at an acute angle to a set of points, the wheels skidded and he was thrown off and killed, will warrant a finding that the place was not reasonably safe for the use which plaintiff's decedent was invited to make of it, at the time when the accident occurred and under the then existing circumstances of traffic. The fact that in consequence of the wearing away of the surface of

a roadway the rails of a railway line crossing it project about 3 inches does not render one who attempted to drive across it with a heavily loaded lorry, and who, in consequence of the skidding of its wheels upon the rail at a place where they converged to a set of points, was thrown off and killed, guilty of contributory negligence as a matter of law.

Very slight circumstances will suffice as prima facie evidence of the absence of knowledge and notice of the dangerous condition of the premises, where the sufferer is dead. Where he is not shown to have been cognizant of the danger, where no rashness or negligence is imputable to him, where his conduct generally is that of a man unaware of extraordinary risk, and no reason is advanced for his deliberately flying in the face of danger that is proved to be unusual, the presumption arising from the natural instinct of humanity to avoid injury to life or limb is, in such a case, generally sufficient, unless rebutted by other circumstances. Per Isaacs, J.

If a man, by his wrongful act, places another in a position where he must sustain what the law regards as damages, the sufferer is entitled to act reasonably for his own benefit, and any loss he sustains in so doing is part of the ordinary course of things for which the wrongdoer is responsible; but he is also bound toward the wrongdoer not to act unreasonably, either in increasing or omitting to mitigate the loss. Per Isaacs, J.

The principle on which damages are recoverable is that they must be the natural and necessary consequences of the act or omission complained of. If further or other loss is sustained through the plaintiff's own rashness or imprudence, that is not attributable to the defendant, and he is not responsible for it. Per Isaacs, J.

Indermaur v. Dames (1866) L. R. 1 C. P. 274; (1867) L. R. 2 C. P. 311, 36 L. J. C. P. N. S. 181, 18 L. T. N. S. 293, 15 Week. Rep. 434, 19 Eng. Rul. Cas. 64, discussed and applied.

Decision of the Supreme Court of South Australia affirmed.

(June 16, 1915.)

APPEAL from the Supreme Court of South Australia.

An action was brought in the Supreme Court by Ruebella Eva Dorothy Richardson against the South Australian Company by which the plaintiff as administratrix of her husband, Henry Albert Richardson, deceased, claimed 1,500l. damages for the death of her husband. By the statement of claim it was alleged that the defendants were the owners and occupiers of a certain wharf and of certain land whereon the wharf was situated; that the defendants carried on upon the land the business of wharfingers, and in the course of their business invited to the land the persons and their agents using the wharf in the course of the defendants'

business; that the deceased on 8th September, 1913, in the course of his employment and at the invitation of the defendants, entered upon the land, driving a lorry drawn by five horses; that on that date the defendants were the proprietors of a railway situated on a roadway on the land, which roadway gave ingress and egress to the wharf, and that they so negligently and improperly constructed, managed, and maintained the railway as to allow the rails to project above the surface of the land to the extent of 2 inches; and that while the deceased was lawfully and at the invitation of the defendants driving the lorry along the road it collided with one of the rails, and he was thrown to the ground and killed. By the defense it was alleged that the actual state and condition of the roadway and railway, including the projection of the rails above the surface, were apparent to all persons coming to the wharf and land, and in particular to the deceased before he drove or attempted or began to drive across the railway; that the deceased was aware of the state and condition of the railway, and being so aware took upon himself the risk, if any, arising from or in crossing or attempting to cross the railway in its then state or condition; and that the deceased was guilty of contributory negligence.

[183] The action was heard by Buchanan, J., who at the close of the plaintiff's case found as a fact that the deceased had knowledge or notice of the condition of the defendants' premises. He accordingly ordered judgment to be entered for the defendants. On a motion by the plaintiff the full court by majority ordered the judgment for the defendants to be set aside and a new trial had.

From that decision the defendants now appealed to the High Court.

Piper, K. C. (with him Skipper), for the appellants, referred to Dobson v. Horsley [1915] 1 K. B. 634, 84 L. J. K. B. N. S. 399, 112 L. T. N. S. 101, 31 Times L. R. 12; Indermaur v. Dames (1866) L. R. 1 C. P. 274; (1867) L. R. 2 C. P. 311, 36 L. J. C. P. N. S. 181, 16 L. T. N. S. 293, 15 Week. Rep. 434, 19 Eng. Rul. Cas. 64; Torrance v. Ilford Urban District Council (1909) 25 Times L. R. 355, 73 J. P. 225, 53 Sol. Jo. 301, 7 L. G. R. 554; Norman v. Great Western Railway Co. [1914] 2 K. B. 153, at p. 158, 83 L. J. K. B. N. S. 669, 110 L. T. N. S. 306,