In questions of duty, should courts draw a distinction between inaction that has the consequence of harm, and positive action that creates harm?
Moch Co. v. Rensselaer Water Co., 219 App. Div. 673, affirmed.5
(Submitted December 9, 1927; decided January 10, 1928.)6
APPEAL from a judgment, entered March 19, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of Special Term denying a motion for a dismissal of the complaint and granted said motion.7
Glenn A. Frank for appellant. The duties and obligation of the defendant did not arise solely by reason of its contract with the city of Rensselaer, but had their inception in section 81 of the Transportation Corporations Law. (Waterloo Water Co. v. Village of Waterloo, 200 App. Div. 721; Mamaroneck v. New York City Water  Co., 203 App. Div. 122; 235 N. Y. 563; City of New York v. Jamaica Water Supply Co., 181 App. Div. 49; 226 N. Y. 572; People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277; Staten Island Water Supply Company v. City of N. Y., 144 App. Div. 324; Glanzer v. Shepard, 233 N. Y. 236.)8
Thomas F. McDermott for respondent. A city assuming the function of extinguishment of fires is not liable to an inhabitant for its negligence. (Springfield Fire Ins.Co. v. Village of Keeseville, 148 N. Y. 46; Maxmilian v. Mayor, etc., 62 N. Y. 160; Oakes Mfg. Co. v. City of New York, 206 N. Y. 221; Matter of International Ry. Co. v. Rann, 224 N. Y. 83; Wainwright v. Queens Co. Water Co., 78 Hun, 146; Wilcox v. Rochester, 190 N. Y. 137.) The non-liability of the city for its negligence in the extinguishment of fires is extended to the defendant, a private water company, to which the city intrusted that governmental function. (German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220; 174 Fed. Rep. 764; Wainwright v. Queens Co. Water Co., 78 Hun, 146; Smith v. Great South Bay Water Co., 82 App. Div. 427; Nichol v. Huntington Water Co., 53 W. Va. 348; Akron Water Co. v. Brownless, 10 Ohio C. C. 620; Dillon on Mun. Corp. [5th ed.] § 1340; Hall v. Passaic Water Co., 83 N. J. L. 771; Baum v. Somerville Water Co., 84 N. J. L. 611; Hone v. Presque Isle Water Co., 104 Maine, 271; Eaton v. Faubin, 37 Neb. 546; House v. Houston W. Co., 88 Tex. 233; Button v. Green Bay Water Co., 81 Wis. 48.) Plaintiff cannot recover in tort. (German Alliance Ins. Co. v. Home W. Co., 226 U. S. 220; Howsman v. Trenton W. Co., 119 Mo. 304; House v. Houston W. Co., 88 Tex. 233; Wilkins v. L. H. W. Co., 78 Miss. 389; Nichol v. Huntington W. Co., 53 W. Va. 348; Root v. Saratoga Spa, 218 App. Div. 237; Fitch v. Seymour Water Co., 139 Ind. 214; Anderson v. Iron Mountain Water Co., 225 Mich. 514.)9
The defendant, a water works company under the laws of this State, made a contract with the city of Rensselaer for the supply of water during a term of years. Water was to be furnished to the city for sewer flushing and street sprinkling; for service to schools and public buildings; and for service at fire hydrants, the latter service at the rate of $42.50 a year for each hydrant. Water was to be furnished to private takers within the city at their homes and factories and other industries at reasonable rates, not exceeding a stated schedule. While this contract was in force, a building caught fire. The flames, spreading to the plaintiff's warehouse near by, destroyed it and its contents. The defendant according to the complaint was promptly notified of the fire, “but omitted and neglected after such notice, to supply or furnish sufficient or adequate quantity of water, with adequate pressure to stay, suppress or extinguish the fire before it reached the warehouse of the plaintiff, although the pressure and supply which the defendant was equipped to supply and furnish, and had agreed by said contract to supply and furnish, was adequate and sufficient to prevent the spread of the fire to and the destruction of the plaintiff's warehouse and its contents." By reason of the failure of the defendant to “fulfill the provisions of the contract between it and the city of Rensselaer," the plaintiff is said to have suffered damage, for which judgment is demanded. A motion, in the nature of a demurrer, to dismiss the complaint, was denied at Special Term. The Appellate Division reversed by a divided court.11
Liability in the plaintiff's argument is placed on one or other of three grounds. The complaint, we are told, is to be viewed as stating: (1) A cause of action for breach of contract within Lawrence v. Fox (20 N. Y. 268); (2) a cause of action for a common-law tort, within MacPherson v. Buick Motor Company (217 N. Y. 382); or (3) a cause of action for the breach of a statutory duty. These several grounds of liability will be considered in succession.12
No legal duty rests upon a city to supply its inhabitants with protection against fire (Springfield Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46). That being so, a member of the public may not maintain an action under Lawrence v. Fox against one contracting with the city to furnish water at the hydrants, unless an intention appears that the promisor is to be answerable to individual members of the public as well as to the city for any loss ensuing from the failure to fulfill the promise. No such intention is discernible here. On the contrary, the contract is significantly divided into two branches: one a promise to the city for the benefit of the city in its corporate capacity, in which branch is included the service at the hydrants; and the other a promise to the city for the benefit of private takers, in which branch is included the service at their homes and factories. In a broad sense it is true that every city contract, not improvident or wasteful, is for the benefit of the public. More than this, however, must be shown to give a right of action to a member of the public not formally a party. The benefit, as it is sometimes said, must be one that is not merely incidental and secondary (cf. Fosmire v. Nat. Surety Co., 229 N. Y. 44). It must be primary and immediate in such a sense and to such a degree as to bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost. The field of obligation would be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability. A promisor undertakes to supply fuel for heating a public building. He is not liable for breach of contract to a visitor who finds the building without fuel, and thus contracts a cold. The list of illustrations can be indefinitely extended. The carrier of the mails under contract with the government is not answerable to the merchant who has lost the benefit of a bargain through  negligent delay. The householder is without a remedy against manufacturers of hose and engines, though prompt performance of their contracts would have stayed the ravages of fire. "The law does not spread its protection so far" (Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303).14
So with the ease at hand. By the vast preponderance of authority, a contract between a city and a water company to furnish water at the city hydrants has in view a benefit to the public that is incidental rather than immediate, an assumption of duty to the city and not to its inhabitants. Such is the ruling of the Supreme Court of the United States (German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220). Such has been the ruling in this State (Wainwright v. Queens County Water Co., 78 Hun, 146; Smith v. Great South Bay Water Co., 82 App. Div. 427), though the question is still open in this court. Such with few exceptions has been the ruling in other jurisdictions (Williston, Contracts, § 373, and cases there cited; Dillon, Municipal Corporations [5th ed.]., § 1340). The diligence of counsel has brought together decisions to that effect from twenty-six States. Typical examples are Alabama (Ellis v. Birmingham Water Co., 187 Ala. 552); California (Nichaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305); Georgia (Holloway v. Macon G. & W. Co., 132Ga. 387); Connecticut (Nickerson v. Bridgeport H. Co., 46 Conn. 24); Kansas (Mott v. Cherryvale W. & M. Co., 48 Kan. 12); Maine (Hone v. Presque Isle Water Co., 104 Me. 217); New Jersey (Hall v. Passaic Water Co., 83 N. J. L. 771), and Ohio (Blunk v. Dennison Water Co., 71 Ohio St. 250). Only a few States have held otherwise (Page, Contracts, § 2401). An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose (cf. Hone v. Presque Isle Water Co., 104 Me. 217, at 232). The consequences invited would bear  no reasonable proportion to those attached by law to defaults not greatly different. A wrongdoer who by negligence sets fire to a building is liable in damages to the owner where the fire has its origin, but not to other owners who are injured when it spreads. The rule in our State is settled to that effect, whether wisely or unwisely (Hoffman v. King, 160 N. Y. 618; Rose v. Penn. R.R. Co., 236 N. Y.568; Moore v. Van Beuren & N. Y. Bill Posting Co., 240 N. Y. 673; cf. Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47). If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another, assumes an obligation to pay the ensuing damage, though the whole city is laid low. A promisor will not be deemed to have had in mind the assumption of a risk so overwhelming for any trivial reward.15
The cases that have applied the rule of Lawrence v. Fox to contracts made by a city for the benefit of the public are not at war with this conclusion. Through them all there runs as a unifying principle the presence of an intention to compensate the individual members of the public in the event of a default. For example, in Pond v. New Rochelle Water Co. (183 N. Y. 330) the contract with the city fixed a schedule of rates to be supplied not to public buildings but to private takers at their homes. In Matter of International Railway Co. v. Rann (224 N. Y. 83,85) the contract was by street railroads to carry passengers for a stated fare. In Smyth v. City of N. Y. (203 N. Y. 106) and Rigney v. N. Y. C. & H. R. R. R. Co. (217 N. Y. 31) covenants were made by contractors upon public works, not merely to indemnify the city, but to assume its liabilities. These and like cases come within the third group stated in the comprehensive opinion in Seaver v. Ransom (224 N. Y. 233, 238). The municipality was contracting in behalf of its inhabitants by covenants intended to be enforced by any of them severally as occasion should arise.16
"It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all " (Glanzer v. Shepard, 233 N. Y. 236, 239; Marks v. Nambil Realty Co., Inc., 245 N. Y. 256, 258). The plaintiff would bring its case within the orbit of that principle. The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all. A time-honored formula often phrases the distinction as one between misfeasance and non-feasance. Incomplete the formula is, and so at times misleading. Given a relation involving in its existence a duty of care irrespective of a contract, a tort may result as well from acts of omission as of commission in the fulfillment of the duty thus recognized by law (Pollock, Torts [12th ed.], p. 555; Kelley v. Met. Ry. Co., 1895, 1 Q. B. 944). What we need to know is not so much the conduct to be avoided when the relation and its attendant duty are established as existing. What we need to know is the conduct that engenders the relation. It is here that the formula, however incomplete, has its value and significance. If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward (Bohlen, Studies in the Law of Torts, p. 87). So the surgeon who operates without pay, is liable though his negligence is in the omission to sterilize his instruments (cf. Glanzer v. Shepard, supra); the engineer, though his fault is in the failure to shut off steam (Kelley v. Met. Ry. Co., supra; cf. Pittsfield Cottonwear Mfg. Co. v. Shoe Co., 71 N. H. 522, 529, 533); the maker of automobiles, at the suit of some one other than the buyer, though his negligence is merely in inadequate inspection (MacPherson  v. Buick Motor Co., 217 N. Y. 382). The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good (cf. Fowler v. Athens Waterworks Co., 83 Ga. 219, 222).18
The plaintiff would have us hold that the defendant, when once it entered upon the performance of its contract with the city, was brought into such a relation with every one who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort. There is a suggestion of this thought in Guardian Trust Co. v. Fisher (200U. S. 57), but the dictum was rejected in a later case decided by the same court (German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220) when an opportunity was at hand to turn it into law. We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, "The law does not spread its protection so far" (Robins Dry Dock & Repair Co. v. Flint, supra; cf. Byrd v. English,117Ga. 191; Dale v. Grant, 34 N. J. L. 142;Conn. Ins.  Co. v. N. Y. & N. H, R. R. Co., 25 Conn. 265; Anthony v. Slaid, 11 Metc. 290). We do not need to determine now what remedy, if any, there might be if the defendant had withheld the water or reduced the pressure with a malicious intent to do injury to the plaintiff or another. We put aside also the problem that would arise if there had been reckless and wanton indifference to consequences measured and foreseen. Difficulties would be present even then, but they need not now perplex us. What we are dealing with at this time is a mere negligent omission, unaccompanied by malice or other aggravating elements. The failure in such circumstances to furnish an adequate supply of water is at most the denial of a benefit. It is not the commission of a wrong.19
The defendant, a public service corporation, is subject to the provisions of the Transportation Corporations Act. The duty imposed upon it by that act is in substance to furnish water, upon demand by the inhabitants, at reasonable rates, through suitable connections at office, factory or dwelling, and to furnish water at like rates through hydrants or in public buildings upon demand by the city, all according to its capacity (Transportation Corporations Law [Cons. Laws, ch. 63], § 81; Staten Island Water Supply Co. v. City of N. Y., 144 App. Div. 318; People ex rel. City of N. Y. v. Queens Co. Water Co., 232 N. Y. 277;People ex rel. Arthur v. Huntington Water Works Co., 208 App. Div. 807, 808). We find nothing in these requirements to enlarge the zone of liability where an inhabitant of the city suffers indirect or incidental damage through deficient pressure at the hydrants. The breach of duty in any case is to the one to whom service is denied at the time and at the place where service to such one is due. The denial, though wrongful, is unavailing without more to give a cause of action to another. We may finda helpful analogy in the law of common carriers.  A railroad company is under a duty to supply reasonable facilities for carriage at reasonable rates. It is liable, generally speaking, for breach of a duty imposed by law if it refuses to accept merchandise tendered by a shipper. The fact that its duty is of this character does not make it liable to some one else who may be counting upon the prompt delivery of the merchandise to save him from loss in going forward with his work. If the defendant may not be held for a tort at common law, we find no adequate reason for a holding that it may be held under the statute.21
The judgment should be affirmed with costs.22
POUND, CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur; O'BRIEN, J., not sitting.23
Judgment affirmed, etc.
Should non-negligent owners and operators of an instrumentality have a duty to assist individuals who are harmed by the instrumentality?
66 Kan. 6492
No. 13,073. (72 Pac. 281.)6
SYLLABUS ISY THE COURT.7
1. RAILROADS—Injury to Trespasser—Duty of Employees. A trespasser on a railway-track was struck by a moving car to which an engine was attached, and injured without fault on the part of the servants of the company. Held, that the failure of the railway employees operating the car and engine to take charge of the wounded man and give him care and attention was not the violation of a legal duty for which the company was liable.8
2.—Case Distinguished. The case at bar is distinguishable from those where the servants of the railway company were at fault, and also from those where the injury was occasioned without fault, and the negligent acts or omissions occurred after the company had taken the injured person in charge.9
Error from Wyandotte district court; E. L. FISCHER, judge. Opinion filed April 11, 1903. Reversed.10
N. H. Loomis, R. W. Blair, and II. A. Scandrett, for plaintiff in error.11
C. W. Trickett, for defendant in error.12
The opinion of the court was delivered by13
This was an action brought by Adeline Cappier, the mother of Irvin Ezelle, to recover damages resulting to her by Reason of the loss of her son,  who was run over by a car of plaintiff in error, and died from the injuries received. The trial court, at the close of the evidence introduced to support a recovery by plaintiff below, held that no careless act of the railway company's servants in the operation of the car was shown, and refused to permit the case to be considered by the jury on the allegations and attempted proof of such negligence. The petition, however, contained an averment that the injured person had one leg and an arm cut off by the car-wheels, and that the servants of the railway company failed to call, a surgeon, or to render him any assistance after the accident, but permitted him to remain by the side of the tracks and bleed to death. Under this charge of negligence a recovery was had.15
While attempting to cross the railway-tracks Ezelle was struck by a moving freight-car pushed by an engine. A yardmaster in charge of the switching operations was riding on the end of the car nearest to the deceased and gave warning by shouting to him. The warning was either too late or no heed was given to it. The engine was stopped. After the injured man was clear of the track, the yardmaster signaled the engineer to move ahead, fearing, as he testified, that a passenger-train then about due would come upon them. The locomotive and car went forward over a bridge, where the general yardmaster was informed of the accident and an ambulance was summoned by telephone. The yardmaster then went back where the injured man was lying and found three Union Pacific switchmen binding up the wounded limbs and doing what they could to stop the flow of blood. The ambulance arrived about thirty minutes later and Ezelle was taken to a hospital, where he died a few hours afterward.16
 In answer to particular questions of fact, the jury found that the accident occurred at 5:35 P.M.; that immediately one of the railway employees telephoned to police headquarters for help for the injured man; that the ambulance started at 6:05 P.M. and reached the nearest hospital with Ezelle at 6:20 P.M., where he received proper medical and surgical treatment. Judgment against the railway company was based on the following question and answer:17
"Ques. Did not defendant's employees bind up Ezelle's wounds and try to stop the How of blood as soon as they could after the accident happened? Ans. No."18
The lack of diligence in the respect stated was intended, no doubt, to apply to the yardmaster, engineer and fireman in charge of the car and engine.19
These facts bring us to a consideration of the legal duty of these employees toward the injured man after his condition became known. Counsel for defendant in error quotes the language found in Beach on Contributory Negligence, third edition, section 215, as follows:20
"Under certain circumstances, the railroad may owe a duty to a trespasser after the injury. When a trespasser has been run down, it is the plain duty of the railway company to render whatever service is possible to mitigate the severity of the injury. The train that has occasioned the harm must be stopped, and the injured person looked after; and, when it seems necessary, removed to a place of safety, and carefully nursed, until other relief can be brought to the disabled person."
The principal authority cited in support of this doctrine is Northern Central Railway Co. v. The, State, use of Price et al., 29 Md. 420, 96 Am. Dec. 545. The court in that case first held that there was evidence  enough to justify the jury in finding that the operatives of the train were negligent in running it too fast over a road-crossing without sounding the whistle, and that the number of brakemen was insufficient to check its speed. Such negligence was held sufficient to uphold the verdict and would seem to be all that was necessary to be said. The court, however, proceeded to state that, from whatever cause the collision occurred, it was the duty of the servants of the company, when the map was found on the pilot of the engine in a helpless and insensible condition, to remove him, and to do it with proper regard to his safety and the laws of humanity. In that case the injured person was taken in charge by the servants of the railway company and, being apparently dead, without notice to his family, or sending for a physician to ascertain his condition, he was moved to defendant's warehouse, laid on a plank and locked up for the night. The next morning, when the warehouse was opened, it was found that during the night the man had revived from his stunned condition and moved some paces from the spot where he had been laid, and was found in a stooping posture, dead but still warm, having died from hemorrhage of the arteries of one leg, which was crushed at and above the knee. It had been proposed to place him in the defendant's station-house, which was a comfortable building, but the telegraph operator objected, and directed him to be taken into the warehouse, a place used for the deposit of old barrels and other rubbish.22
The Maryland case does not support what is so broadly stated in Beach on Contributory Negligence. It is cited by Judge Cooley, in his work on Torts, in a note to a chapter devoted to the negligence of bailees (ch. XX), indicating that the learned author under  stood the reasoning of the decision to apply where the duty began after the railway employees had taken charge of the injured person.23
"After the trespasser on the track of a railway company has been injured in collision with a train, and the servants of the company have assumed to take charge of him, the duty arises to exercise such care in his treatment as the circumstances will allow. We are unable, however, to approve the doctrine that when the acts of a trespasser himself result in his injury, where his own negligent conduct is alone the cause, those in charge of the instrument which inflicted the hurt, being innocent of wrong-doing, are nevertheless blamable in law if they neglect to administer to the sufferings of him whose wounds we might say were self-imposed. With the humane side of the question courts are not concerned. It is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance. For withholding relief from the suffering, for failure to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men but in that higher law, the violation of which is condemned by the voice of conscience, whose sentence of punishment for the recreant act is swift and sure. In the law of contracts it is now well understood that a promise founded on a moral obligation will not be enforced in the courts. Bishop states that some of the older authorities recognize amoral obligation as valid, and says:24
"Such a doctrine, carried to its legitimate results, would release the tribunals from the duty to administer the law, of the land; and put, in the place of law, the varying ideas of morals which the changing in  cumbents of the bench might from time to time entertain." (Bish. Cont. §44.)
Ezelle's injuries were inflicted, as the court below held, without the fault of the yardmaster, engineer or fireman in charge of the car and locomotive. The railway company was no more responsible than it would have been had the deceased been run down by the cars of another railroad company on a track parallel with that of plaintiff in error. If no duty was imposed on the servants of defendant below to take charge of, and care for, the wounded man in such a case, how could a duty arise under the circumstances of the case at bar? In Barrows on Negligence, page 4, it is said:26
"The duty must be owing from the defendant to the plaintiff, otherwise there can be no negligence, so far as the plaintiff is concerned; . . . and the duty must be owing to plaintiff in an individual capacity, and not merely as one of the general public.
"This excludes from actionable negligence all failures to observe the obligations imposed by charity, gratitude, generosity, and the kindred virtues. The moral law would obligate an attempt to rescue a person in a perilous position,— as a drowning child,— but the law of the land does not require it, no matter how little personal risk it might involve, provided that the person who declines to act is not responsible for the peril." (See, also, Kenney v. The Hannibal & St. Joseph Railroad Company, 70 Mo. 252, 257.)
In the several cases cited in the brief of counsel for defendant in error to sustain the judgment of the trial court it will be found that the negligence on which recoveries were based occurred after the time when the person injured was in the custody and care of those who were at fault in failing to give him proper treatment.28
 The judgment of the court below will be reversed, with directions to enter judgment on the findings of the jury in favor of the railway company.29
All the Justices concurring.