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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER XII.

DUTIES OF INSURING SAFETY.

Exceptions to general limits of duties of caution.In general, those who in person go about an undertaking attended with risk to their neighbours, or set it in motion by the hand of a servant, are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reasonable man dealing with a dangerous thing—fire, flood-water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be—will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control.

Rylands v. Fletcher. Various particular rules of this kind (now to be regarded as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords.

The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself(a) :—

Judgment of Ex. Ch. “It appears from the statement in the case, that the plaintiff was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants’ land by the defendants’ orders, and maintained by the defendants.

“It appears from the statement in the case, that the coal under the defendants’ land had at some remote period been worked out; but this was unknown at the time when the defendants gave directions to erect the reservoir, and the water in the reservoir would not have escaped from the defendants’ land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants’ subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings.

“It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff’s mine, and there did the mischief.

“The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. . . . .

“We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.”

Affirmation thereof by H. L. Not only was this decision affirmed in the House of Lords(b) , but the reasons given for it were fully confirmed. “If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage”(c) . It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the “natural user” of their land, or “exercise of ordinary rights”—an immunity which extends, as had already been settled by the House of Lords itself(d) , even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made “a non-natural use” of their land, by collecting water “in quantities and in a manner not the result of any work or operation on or under the land.”

The detailed illustration of the rule in Rylands v. Fletcher, as governing the mutual claims and duties of adjacent landowners, belongs to the law of property rather than to the subject of this work(e) . We shall return presently to the special classes of cases (more or less discussed in the judgment of the Exchequer Chamber) for which a similar rule of strict responsibility had been established earlier. As laying down a positive rule of law, the decision in Rylands v. Fletcher is not open to criticism in this country(f) . But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsibility of an insurer on innocent persons is a hard rule, though it may be a just one; and it needs to be maintained by very strong evidence(g) or on very clear grounds of policy. Now the judgment in Fletcher v. Rylands(h) , carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal acceptance. The liability seems to be rested only in part on the evidently hazardous character of the state of things artificially maintained by the defendants on their land. In part the case is assimilated to that of a nuisance(i) , and in part, also, traces are apparent of the formerly prevalent theory that a man’s voluntary acts, even when lawful and free from negligence, are prima facie done at his peril(k) , a theory which modern authorities have explicitly rejected in America, and do not encourage in England, except so far as Rylands v. Fletcher may itself be capable of being used for that purpose(l) . Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge. This indeed is what the law has done as regards duties of safe repair, as we shall presently see. Doubtless it is possible to consider Rylands v. Fletcher as having only fixed a special rule about adjacent landowners(m) : but it was certainly intended to enunciate something much wider.

Character of later cases. Yet no case has been found, not being closely similar in its facts, or within some previously recognized category, in which the unqualified rule of liability without proof of negligence has been enforced. We have cases where damages have been recovered for the loss of animals by the escape, if so it may be called, of poisonous vegetation or other matters from a neighbour’s land(n) . Thus the owner of yew trees, whose branches project over his boundary, so that his neighbour’s horse eats of them and is thereby poisoned, is held liable(n) ; and the same rule has been applied where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a close adjoining that of the occupier, who was bound to maintain the fence, and were swallowed by cattle which died thereof(o) . In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the “natural user” of the land, or on the damage not being such as could have been reasonably anticipated(p) . We may add that having a tree, noxious or not, permanently projecting over a neighbour’s land is of itself a nuisance, and letting decayed pieces of a fence, or anything else, fall upon a neighbour’s land for want of due repair is of itself a trespass. Then in Ballard v. Tomlinson(q) the sewage collected by the defendant in his disused well was an absolutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff’s well, but that he was not bound to do anything.

Exception of act of God. On the other hand, the rule in Rylands v. Fletcher has been decided by the Court of Appeal not to apply to damage of which the immediate cause is the act of God(r) . And the act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate; and whether it comes within this description is a question of fact(s) . The only material element of fact which distinguished the case referred to from Rylands v. Fletcher was that the overflow which burst the defendants’ embankment, and set the stored-up water in destructive motion, was due to an extraordinary storm. Now it is not because due diligence has been used that an accident which nevertheless happens is attributable to the act of God. And experience of danger previously unknown may doubtless raise the standard of due diligence for after-time(t) . But the accidents that happen in spite of actual prudence, and yet might have been prevented by some reasonably conceivable prudence, are not numerous, nor are juries, even if able to appreciate so fine a distinction, likely to be much disposed to apply it(u) . The authority of Rylands v. Fletcher is unquestioned, but Nichols v. Marsland has practically empowered juries to mitigate the rule whenever its operation seems too harsh.

Act of stranger, &c. Again the principal rule does not apply where the immediate cause of damage is the act of a stranger(x) , nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintiff and the defendant(y) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reasonable expectation(z) .

Works required or authorized by law. There is yet another exception in favour of persons acting in the performance of a legal duty, or in the exercise of powers specially conferred by law. Where a zamíndár maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extraordinary rainfall, no negligence being shown(a) . In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land(b) . In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from escaping into a mine worked under the canal(c) . On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape and set fire to the property of adjacent owners, the company is not liable(d) . The burden of proof appears to be on the company to show that due care was used(e) , but there is some doubt as to this(f) .

G. W. R. Co. of Canada v. Braid. Some years before the decision of Rylands v. Fletcher the duty of a railway company as to the safe maintenance of its works was considered by the Judicial Committee on appeal from Upper Canada(g) . The persons whose rights against the company were in question were passengers in a train which fell into a gap in an embankment, the earth having given way by reason of a heavy rain-storm. It was held that “the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur.” And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligence, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embankment throws water, or earth, or both, upon a neighbour’s land so as to do damage there. The result of applying the rule in Rylands v. Fletcher will be that the duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely; or property is more highly regarded than life and limb, and a general duty than a special one.

If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Rylands v. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle.

Other cases of insurance liability. We shall now shortly notice the authorities, antecedent to or independent of Rylands v. Fletcher, which establish the rule of absolute or all but absolute responsibility for certain special risks.

Duty of keeping in cattle. Cattle trespass is an old and well settled head, perhaps the oldest. It is the nature of cattle and other live stock to stray if not kept in, and to do damage if they stray; and the owner is bound to keep them from straying on the land of others at his peril, though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being(h) . So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicking and biting the plaintiff’s mare through a wire fence which separated their closes(i) . The result of the authorities is stated to be “that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass”(k) .

Blackstone(l) says that “a man is answerable for not only his own trespass, but that of his cattle also:” but in the same breath he speaks of “negligent keeping” as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burbidge(m) . Observe that the only reason given in the earlier books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man’s cattle is equivalent to trespass by himself.

The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven: in such case the owner is liable only on proof of negligence(n) ; and the law is the same for a town street as for a country road(o) . Also a man may be bound by prescription to maintain a fence against his neighbour’s cattle(p) .

“Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox,” is a point still not clearly decided. The better opinion seems to favour a negative answer(q) .

Dangerous or vicious animals. Closely connected with this doctrine is the responsibility of owners of dangerous animals. “A person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril.” If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species(r) . If the animal is of a tame and domestic kind, the owner is liable only on proof that he knew the particular animal to be “accustomed to bite mankind,” as the common form of pleading ran in the case of dogs, or otherwise vicious; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition, whether with the actual result of doing mischief on any of those occasions or not(s) . But the necessity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be; and as regards injury to cattle or sheep it has been done away with by statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog(t) .

The word “cattle” includes horses(u) and perhaps pigs(v) .

Fire, fire-arms, &c. The risk incident to dealing with fire, fire-arms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Sometimes the term “consummate care” is used to describe the amount of caution required: but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant’s part was held to exonerate him.

Duty of keeping in fire. As to fire, we find it in the fifteenth century stated to be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour(x) . In declaring on this custom, however, the averment was “ignem suum tam negligenter custodivit:” and it does not appear whether the allegation of negligence was traversable or not(y) . We shall see that later authorities have adopted the stricter view.

The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house(z) . Here too it looks as if negligence was the gist of the action, which is described (in Lord Raymond’s report) as “case grounded upon the common custom of the realm for negligently keeping his fire.” Semble, if the fire were carried by sudden tempest it would be excusable as the act of God. Liability for domestic fires has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence(a) . He is answerable for damage done by fire lighted by an authorized person, whether servant or contractor, notwithstanding that the conditions of the authority have not all been complied with(b) .

The use of fire for non-domestic purposes, if we may coin the phrase, remains a ground of the strictest responsibility.

Carrying fire in locomotives. Decisions of our own time have settled that one who brings fire into dangerous proximity to his neighbour’s property, in such ways as by running locomotive engines on a railway without express statutory authority for their use(c) , or bringing a traction engine on a highway(d) , does so at his peril. And a company authorized by statute to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way(d) .

It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found acceptance(e) . In New York it has, after careful discussion, been expressly disallowed(f) .

Fire-arms: Dixon v. Bell. Loaded fire-arms are regarded as highly dangerous things, and persons dealing with them are answerable for damage done by their explosion, even if they have used apparently sufficient precaution. A man sent his maid-servant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl; she loitered on her errand, and (thinking, presumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, perhaps as much care as would commonly be thought enough. “It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm”(g) . This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that some such person will discharge them to the injury of himself or others.

Explosives and other dangerous goods. On a like principle it is held that people sending goods of an explosive or dangerous nature to be carried are bound to give reasonable notice of their nature, and, if they do not, are liable for resulting damage. So it was held where nitric acid was sent to a carrier without warning, and the carrier’s servant, handling it as he would handle a vessel of any harmless fluid, was injured by its escape(h) . The same rule has been applied in British India to the case of an explosive mixture being sent for carriage by railway without warning of its character, and exploding in the railway company’s office, where it was being handled along with other goods(i) ; and it has been held in a similar case in Massachusetts that the consignor’s liability is none the less because the danger of the transport, and the damage actually resulting, have been increased by another consignor independently sending other dangerous goods by the same conveyance(k) .

Gas escapes. Gas (the ordinary illuminating coal-gas) is not of itself, perhaps, a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life(l) , Persons undertaking to deal with it are therefore bound, at all events, to use all reasonable diligence to prevent an escape which may have such results. A gas-fitter left an imperfectly connected tube in the place where he was working under a contract with the occupier; a third person, a servant of that occupier, entering the room with a light in fulfilment of his ordinary duties, was hurt by an explosion due to the escape of gas from the tube so left; the gas-fitter was held liable as for a “misfeasance independent of contract”(m) .

Poisonous drugs: Thomas v. Winchester. Poisons can do as much mischief as loaded fire-arms or explosives, though the danger and the appropriate precautions are different.

A wholesale druggist in New York purported to sell extract of dandelion to a retail druggist. The thing delivered was in truth extract of belladonna, which by the negligence of the wholesale dealer’s assistant had been wrongly labelled. By the retail druggist this extract was sold to a country practitioners, and by him to a customer, who took it as and for extract of dandelion, and thereby was made seriously ill. The Court of Appeals held the wholesale dealer liable to the consumer. “The defendant was a dealer in poisonous drugs . . . . The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.” And the existence of a contract between the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. “The plaintiff’s injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord” (the country practitioner) “without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale”—or administration without sale—“on the faith of the label”(n) . This case has been thought in England to go too far; but it is hard to see in what respect it goes farther than Dixon v. Bell. So far as the cases are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the world labelled as dandelion (the two extracts being otherwise distinguishable only by minute examination) it is a more than probable consequence that some one will take it as and for dandelion and be the worse for it: and this without any action on the part of others necessarily involving want of due care(o) .

It can hardly be said that a wrongly labelled poison, whose true character is not discoverable by any ordinary examination such as a careful purchaser could or would make, is in itself less dangerous than a loaded gun. The event, indeed, shows the contrary.

Difficulties felt in England: George v. Skivington. Nevertheless difficulties are felt in England about admitting this application of a principle which in other directions is both more widely and more strictly applied in this country than in the United States(p) . In 1869 the Court of Exchequer made a rather hesitating step towards it, putting their judgment partly on the ground that the dispenser of the mischievous drug (in this case a hair wash) knew that it was intended to be used by the very person whom it in fact injured(q) . The cause of action seems to have been treated as in the nature of deceit, and Thomas v. Winchester does not seem to have been known either to counsel or to the Court. In the line actually taken one sees the tendency to assume that the ground of liability, if any, must be either warranty or fraud. But this is erroneous, as the judgment in Thomas v. Winchester carefully and clearly shows. Whether that case was well decided appears to be a perfectly open question for our courts(r) . In the present writer’s opinion it is good law, and ought to be followed. Certainly it comes within the language of Parke B. in Longmeid v. Holliday(s) , which does not deny legal responsibility “when any one delivers to another without notice an instrument in its nature dangerous under particular circumstances, as a loaded gun which he himself has loaded, and that other person to whom it is delivered is injured thereby; or if he places it in a situation easily accessible to a third person who sustains damage from it.” In that case the defendant had sold a dangerous thing, namely an ill-made lamp, which exploded in use, but it was found as a fact that he sold it in good faith, and it was not found that there was any negligence on his part. As lamps are not in their nature explosive, it was quite rightly held that on these facts the defendant could be liable only ex contractu, and therefore not to any person who could not sue on his contract or on a warranty therein expressed or implied.

Duties of occupiers of buildings, &c., in respect of safe repair. We now come to the duties imposed by law on the occupiers of buildings, or persons having the control of other structures intended for human use and occupation, in respect of the safe condition of the building or structure. Under this head there are distinctions to be noted both as to the extent of the duty, and as to the persons to whom it is owed.

Extent of the duty. The duty is founded not on ownership, but on possession, in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot discharge himself by employing an independent contractor for the maintenance and repair of the structure, however careful he may be in the choice of that contractor. Thus the duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reasonably safe condition, so far as the exercise of reasonable care and skill can make it so(t) . To that extent there is a limited duty of insurance, as one may call it, though not a strict duty of insurance such as exists in the classes of cases governed by Rylands v. Fletcher.

Modern date of the settled rule: Indermaur v. Dames. The separation of this rule from the ordinary law of negligence, which is inadequate to account for it, has been the work of quite recent times. As lately as 1864(u) the Lord Chief Baron Pigot (of Ireland), in a very careful judgment, confessed the difficulty of discovering any general rule at all. Two years later a judgment of the Court of Common Pleas, delivered by Willes J., and confirmed by the Exchequer Chamber, gave us an exposition which has since been regarded on both sides of the Atlantic as a leading authority(x) . The plaintiff was a journeyman gas-fitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant’s sugar-refinery. While on an upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. It was found as a fact that there was no want of reasonable care on the plaintiff’s part, which amounts to saying that even to a careful person not already acquainted with the building the danger was an unexpected and concealed one. The Court held that on the admitted facts the plaintiff was in the building as “a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission.” They therefore had to deal with the general question of law “as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation express or implied. The common case is that of a customer in a shop: but it is obvious that this is only one of a class. . . . .

“The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.

“And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact”(y) .

The Court goes on to admit that “there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place would reasonably be, having regard to the contrivances necessarily used in carrying on the business.” On the facts they held that “there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned; that there was by reason of the shaft unusual danger, known to the defendant; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it.” The judgment in the Exchequer Chamber(z) is little more than a simple affirmation of this.

Persons entitled to safety. It is hardly needful to add that a customer, or other person entitled to the like measure of care, is protected not only while he is actually doing his business, but while he is entering and leaving(a) . And the amount of care required is so carefully indicated by Willes J. that little remains to be said on that score. The recent cases are important chiefly as showing in respect of what kinds of property the duty exists, and what persons have the same rights as a customer. In both directions the law seems to have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being upon the spot, or engaged in work on or about the property whose condition is in question, in the course of any business in which the occupier has an interest. It is not necessary that there should be any direct or apparent benefit to the occupier from the particular transaction(b) . Where gangways for access to ships in a dock were provided by the dock company, the company has been held answerable for their safe condition to a person having lawful business on board one of the ships; for the providing of access for all such persons is part of a dock-owner’s business; they are paid for it by the owners of the ships on behalf of all who use it(c) . A workman was employed under contract with a ship-owner to paint his ship lying in a dry dock, and the dock-owner provided a staging for the workman’s use; a rope by which the staging was supported, not being of proper strength, broke and let down the staging, and the man fell into the dock and was hurt; the dock-owner was held liable to him(d) . It was contended that the staging had been delivered into the control of the ship-owner, and became as it were part of the ship; but this was held no reason for discharging the dock-owner from responsibility for the condition of the staging as it was delivered. Persons doing work on ships in the dock “must be considered as invited by the dock-owner to use the dock and all appliances provided by the dock-owner as incident to the use of the dock”(e) . Similarly, the owner of a building let in flats is answerable for the safe condition of the common staircase to persons coming to do business with any of the tenants(f) .

A person lawfully entering on land, or into a building, in the discharge of a public duty or otherwise with justification, would seem to be in the same position as a customer and not to be a mere licensee, though such terms as “licence by authority of law” may sometimes be applied to these cases. We do not know of any English authority precisely in point, but the question has been raised in America.

Duty in respect of carriages, ships, &c. The possession of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or staging in a dock, as we have just seen; to a temporary stand put up for seeing a race or the like(g) ; to carriages travelling on a railway or road(h) , or in which goods are despatched(i) ; to ships(k) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf(l) ; and to market-places(m) .

In the case of a wharfinger he is bound to use reasonable care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times, having regard to the conditions of tide, the ship’s draught of water, and the like. But this duty exists only so far as the river bed is in the wharfinger’s possession or control(n) .

A railway passenger using one company’s train with a ticket issued by another company under an arrangement made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reasonably safe provision for his conveyance, not only as regards the construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used(o) . Where goods are lawfully shipped with the shipowner’s consent, it is the shipowner’s duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them(p) . Owners of a cattle-market are bound to leave the market-place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use(q) .

Limits of the duty. In the various applications we have mentioned, the duty does not extend to defects incapable of being discovered by the exercise of reasonable care, such as latent flaws in metal(r) ; though it does extend to all such as care and skill (not merely care and skill on the part of the defendant) can guard against(s) .

Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care(t) .

Volenti non fit iniuria. Liability under the rule in Indermaur v. Dames(u) may be avoided not only by showing contributory negligence in the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it(v) ; but this will not excuse the breach of a positive statutory duty(x) .

Duty towards passers-by. Occupiers of fixed property are under a like duty towards persons passing or being on adjacent land by their invitation in the sense above mentioned, or in the exercise of an independent right.

In Barnes v. Ward(y) , the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Campbell’s Act, and the case was twice argued; the main point for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excavation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance “even though the danger consists in the risk of accidentally deviating from the road.” Lately it has been held that one who by lawful authority diverts a public path is bound to provide reasonable means to warn and protect travellers against going astray at the point of diversion(z) .

In Corby v. Hill(a) the plaintiff was a person using a private way with the consent of the owners and occupiers. The defendant had the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff’s horse, being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the owners or not. If not, he was a mere trespasser; but the owners themselves could not have justified putting a concealed and dangerous obstruction in the way of persons to whom they had held out the road as a means of access(b) .

Here the plaintiff was (it seems)(c) only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee’s condition is better than a trespasser’s.

Presumption of negligence (res ipsa loquitur). Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of explanation, is of itself evidence of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable. The authorities, though not numerous, are sufficient to establish the rule, one of them being the decision of a court of appeal. In Byrne v. Boadle(d) a barrel of flour fell from a window in the defendant’s warehouse in Liverpool, and knocked down the plaintiff, who was lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise against the defendant a presumption of negligence which it was for him to rebut. “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. . . . A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be primâ facie evidence of negligence”(e) . This was followed, perhaps extended, in Kearney v. London, Brighton and South Coast Railway Co.(f) . There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, except that after the accident other bricks were found to have fallen out. The Court held the maxim “res ipsa loquitur” to be applicable. “The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it;” and when “a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train,” it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair(g) . This decision has been followed, in the stronger case of a whole building falling into the street, in the State of New York. “Buildings properly constructed do not fall without adequate cause”(h) .

In a later case(i) the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair: the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. “It was the defendant’s duty to make the lamp reasonably safe, the contractor failed to do that . . . . therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences”(j) . In this case negligence on the contractor’s part was found as a fact.

Combining the principles affirmed in these authorities, we see that the owner of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against.

Distinctions. But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier’s control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable(k) . In other words, he does not answer for the care or skill of an independent and apparently competent contractor in the doing of that which, though connected with the repair of a structure for whose condition the occupier does answer, is in itself merely incident to the contractor’s business and under his order and control.

There are cases involving principles and considerations very similar to these, but concerning the special duties of adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their existence, though in practice the distinction is not always easy to maintain(l) .

Position of licensees. Thus far we have spoken of the duties owed to persons who are brought within these risks of unsafe condition or repair by the occupier’s invitation on a matter of common interest, or are there in the exercise of a right. We have still to note the plight of him who comes on or near another’s property as a “bare licensee.” Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoured in the law of men who are not actual wrong-doers. He must take the property as he finds it, and is entitled only not to be led into danger by “something like fraud”(m) .

Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land(n) , or pass over private bridges(o) , or have the run of a building(p) , cannot expect to find the land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable(q) . And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he purposely made his property dangerous to persons using ordinary care, and then held out his permission as an inducement to come on it. Apart from this improbable case, the licensee’s rights are measured, at best, by the actual state of the property at the time of the licence.

“If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not”(r) .

The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufficiently; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap(s) . The plaintiff, by having permission to use the path, had not the right to find it in any particular state of safety or convenience.

“Permission involves leave and licence, but it gives no right. If I avail myself of permission to cross a man’s land I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right: it is an excuse or licence, so that the party cannot be treated as a trespasser”(t) . In the language of Continental jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable(u) .

Host and guest. Invitation is a word applied in common speech to the relation of host and guest. But a guest (that is, a visitor who does not pay for his entertainment) has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part(x) . All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himself.

On the same principle, a man who offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware(y) .

Liability of licensor for “ordinary negligence.” It may probably be assumed that a licensor is answerable to the licensee for ordinary negligence(z) , in the sense that his own act or omission will make him liable if it is such that it would create liability as between two persons having an equal right to be there: for example, if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee’s rights and risks is still by no means free from difficulty.

Liability of owner not in occupation? It does not appear to have been ever decided how far, if at all, an owner of property not in possession can be subject to the kind of duties we have been considering. We have seen that in certain conditions he may be liable for nuisance(a) . But, since the ground of these special duties regarding safe condition and repair is the relation created by the occupier’s express or tacit “invitation,” it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suffered is, as between owner and occupier, a breach of the owner’s obligation.

[(a) ]L. R. 1 Ex. at p. 278, per Willes, Blackburn, Keating, Mellor, Montague Smith, and Lush JJ. For the statements of fact referred to, see at pp. 267—269.

[(b) ]Rylands v. Fletcher (1868) L. R. 3 H. L. 330, 37 L. J. Ex. 161.

[(c) ]Lord Cranworth, at p. 340.

[(d) ]Chasemore v. Richards (1859) 7 H. L. C. 349, 29 L. J. Ex. 81.

[(e) ]See Fletcher v. Smith (1877) 2 App. Ca. 781, 47 L. J. Ex. 4; Humphries v. Cousins (1877) 2 C. P. D. 239, 46 L. J. C. P. 438; Hurdman v. North Eastern R. Co. (1878) 3 C. P. Div. 168, 47 L. J. C. P. 368; and for the distinction as to “natural course of user,” Wilson v. Waddell, H. L. (Sc.) 2 App. Ca. 95. The principle of Rylands v. Fletcher was held applicable to an electric current discharged into the earth in National Telephone Co. v. Baker, ’93, 2 Ch. 186, 62 L. J. Ch. 699, 3 R. 318.

[(f) ]Judicial opinions still differ in the United States. See Bigelow L. C. 497—500. The case has been cited with approval in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194; Gorham v. Gross, 125 Mass. 232; Mears v. Dole, 135 Mass. 508); but distinctly disallowed in New York: Losee v. Buchanan, 51 N. Y. (6 Sickels) 476.

[(g) ]See Reg. v. Commissioners of Sewers for Essex (1885) 14 Q. B. Div. 561.

[(h) ]L. R. 1 Ex. 277 sqq.

[(i) ]See especially at pp. 285-6. But can an isolated accident, however mischievous in its results, be a nuisance? though its consequences may, as where a branch lopped or blown down from a tree is left lying across a highway.

[(k) ]L. R. 1 Ex. 286-7, 3 H. L. 341.

[(l) ]See The Nitro-glycerine Case (1872) 15 Wall. 524; Brown v. Kendall (1850) 6 Cush. 292; Holmes v. Mather (1875) L. R. 10 Ex. 261, 44 L. J. Ex. 176; Stanley v. Powell, ’91, 1 Q. B. 86, 60 L. J. Q. B. 52.

[(m) ]Martin B., L. R. 6 Ex. at p. 223.

[(n) ]There must be something of this kind. A man is not liable for the loss of a neighbour’s cattle which trespass and eat yew leaves on his land: Ponting v. Noakes, ’94, 2 Q. B. 281, 10 R. July, 283, 63 L. J. Q. B. 549.

[(n) ]Crowhurst v. Amersham Burial Board (1878) 4 Ex. D. 5, 48 L. J. Ex. 109. Wilson v. Newberry (1871) L. R. 7 Q. B. 31, 41 L. J. Q. B. 31, is not inconsistent, for there it was only averred that clippings from the defendants’ yew trees were on the plaintiff’s land; and the clipping might, for all that appeared, have been the act of a stranger.

[(o) ]Firth v. Bowling Iron Co. (1878) 3 C. P. D. 254, 47 L. J. C. P. 358.

[(p) ]The former ground was chiefly relied on in Crowhurst’s case, the latter in Firth’s.

[(q) ]29 Ch. Div. 115 (1885), 54 L. J. Ch. 454.

[(r) ]Act of God=vis maior=θεοῦ βία: see D. 19. 2. locati conducti, 25, § 6. The classical signification of “vis maior” is however wider for some purposes; Nugent v. Smith, 1 C. P. Div. 423, 429, per Cockburn C. J.

[(s) ]Nichols v. Marsland (1875-6) L. R. 10 Ex. 255, 2 Ex. D. 1, 46 L. J. Ex. 174. Note that Lord Bramwell, who in Rylands v. Fletcher took the view that ultimately prevailed, was also a party to this decision. The defendant was an owner of artificial pools, formed by damming a natural stream, into which the water was finally let off by a system of weirs. The rainfall accompanying an extremely violent thunderstorm broke the embankments, and the rush of water down the stream carried away four county bridges, in respect of which damage the action was brought.

[(t) ]See Reg. v. Commissioners of Sewers for Essex (1885) in judgment of Q. B. D., 14 Q. B. D. at p. 574.

[(u) ]“Whenever the world grows wiser it convicts those that came before of negligence.” Bramwell B., L. R. 6 Ex. at p. 222. But juries do not, unless the defendant is a railway company.

[(x) ]Box v. Jubb (1879) 4 Ex. D. 76, 48 L. J. Ex. 417. Wilson v. Newberry (1871) L. R. 7 Q. B. 31, 41 L. J. Q. B. 31, is really a decision on the same point.

[(y) ]Carstairs v. Taylor (1871) L. R. 6 Ex. 217, 40 L. J. Ex. 29; cp. Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364.

[(z) ]Carstairs v. Taylor, last note, but the other ground seems the principal one. The plaintiff was the defendant’s tenant; the defendant occupied the upper part of the house. A rat gnawed a hole in a rain-water box maintained by the defendant, and water escaped through it and damaged the plaintiff’s goods on the ground floor. Questions as to the relation of particular kinds of damage to conventional exceptions in contracts for safe carriage or custody are of course on a different footing. See as to rats in a ship Hamilton v. Pandorf (1887) 12 App. Ca. 518, 57 L. J. Q. B. 24.

[(a) ]Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364; S. C., 14 Ben. L. R. 209.

[(b) ]See per Holloway J. in the Court below, 6 Mad. H. C. at p. 184.

[(c) ]Dunn v. Birmingham Canal Co. (1872) Ex. Ch. L. R. 8 Q. B. 42, 42 L. J. Q. B. 34. The principle was hardly disputed, the point which caused some difficulty being whether the defendants were bound to exercise for the plaintiff’s benefit certain optional powers given by the same statute.

[(d) ]Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247; cp. L. R. 4 H. L. 201, 202; Fremantle v. L. & N. W. R. Co. (1861) 10 C. B. N. S. 89, 31 L. J. C. P. 12.

[(e) ]The escape of sparks has been held to be prima facie evidence of negligence; Piggott v. E. C. R. Co. (1846) 3 C. B. 229, 15 L. J. C. P. 235; cp. per Blackburn J. in Vaughan v. Taff Vale R. Co.

[(f) ]Smith v. L. & S. W. R. Co. (1870) Ex. Ch. L. R. 6 C. P. 14, seems to imply the contrary view; but Piggott v. E. C. R. Co. was not cited. It may be that in the course of a generation the presumption of negligence has been found no longer tenable, experience having shown the occasional escape of sparks to be consistent with all practicable care. Such a reaction would hardly have found favour, however, with the Court which decided Fletcher v. Rylands in the Exchequer Chamber.

[(g) ]G. W. R. Co. of Canada v. Braid (1863) 1 Moo. P. C. N. S. 101. There were some minor points on the evidence (whether one of the sufferers was not travelling at his own risk &c.), which were overruled or regarded as not open, and are therefore not noticed in the text.

[(h) ]Cox v. Burbidge (1863) 13 C. B. N. S. 430, 32 L. J. C. P. 89.

[(i) ]Ellis v. Loftus Iron Co. (1874) L. R. 10 C. P. 10, 44 L. J. C. P. 24, a stronger case than Lee v. Riley (1865) 18 C. B. N. S. 722, 34 L. J. C. P. 212, there cited and followed.

[(k) ]Brett J., L. R. 10 C. P. at p. 13; cp. the remarks on the general law in Smith v. Cook (1875) 1 Q. B. D. 79, 45 L. J. Q. B. 122 (itself a case of contract).

[(l) ]Comm. iii. 211.

[(m) ]13 C. B. N. S. 430, 32 L. J. C. P. 89.

[(n) ]Goodwin v. Cheveley (1859) 4 H. & N. 631, 28 L. J. Ex. 298. A contrary opinion was expressed by Littleton, 20 Edw. IV. 11, pl. 10, cited in Read v. Edwards, 17 C. B. N. S. 245, 34 L. J. C. P. at p. 32.

[(o) ]Tillett v. Ward (1882) 10 Q. B. D. 17, 52 L. J. Q. B. 61, where an ox being driven through a town strayed into a shop.

[(p) ]So held as early as 1441-2: Y. B. 19 H. VI. 33, pl. 68.

[(q) ]Read v. Edwards (1864) 17 C. B. N. S. 245, 34 L. J. C. P. 31; and see Millen v. Fawdry, Latch, 119. In Teape v. Swan, 51 L. T. 263, the defendant was held not liable for injury received by the plaintiff from the defendant’s dog jumping over a wall and falling on him. Here it would seem the damage was not of a kind that could be reasonably foreseen, whether there were a nominal trespass or not. The plaintiff could not have recovered unless the law treated a dog as an absolutely dangerous animal.

[(r) ] As a monkey: May v. Burdett (1846) 9 Q. B. 101, and 1 Hale, P. C. 430, there cited. An elephant is a dangerous animal in England: Filburn v. Aquarium Co. (1890) 25 Q. B. Div. 258, 59 L. J. Q. B. 471.

[(s) ]Worth v. Gilling (1866) L. R. 2 C. P. 1. As to what is sufficient notice to the defendant through his servants, Baldwin v. Casella (1872) L. R. 7 Ex. 325, 41 L. J. Ex. 167; Applebee v. Percy (1874) L. R. 9 C. P. 647, 43 L. J. C. P. 365.

[(t) ]28 & 29 Vict. c. 60 (ad 1865). There is a similar Act for Scotland, 26 & 27 Vict. c. 100. See Campbell on Negligence, 2nd ed. pp. 53—55. Further protection against mischievous or masterless dogs is given by 34 & 35 Vict. c. 56, a statute of public police regulations outside the scope of this work. The Scottish comment on our old common law rule—“every dog is entitled to one worry”—is almost too familiar for quotation.

[(u) ]Wright v. Pearson (1869) L. R. 4 Q. B. 582.

[(v) ]Child v. Hearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100 (on a different Act).

[(x) ]Y. B. 2 Hen. IV. 18, pl. 5. This may be founded on ancient Germanic custom: cp. Ll. Langob. cc. 147, 148 (ad 643), where a man who carries fire more than nine feet from the hearth is said to do so at his peril.

[(y) ]Blackstone (i. 431) seems to assume negligence as a condition of liability.

[(z) ]Tubervil or Tuberville v. Stamp, 1 Salk. 13, s. c. 1 Ld. Raym. 264.

[(a) ]14 Geo. III. c. 78, s. 86, as interpreted in Filliter v. Phippard (1847) 11 Q. B. 347, 17 L. J. Q. B. 89. There was an earlier statute of Anne to a like effect; 1 Blackst. Comm. 431; and see per Cur. in Filliter v. Phippard. It would seem that even at common law the defendant would not be liable unless he knowingly lighted or kept some fire to begin with; for otherwise how could it be described as ignis suus?

[(b) ]Black v. Christchurch Finance Co. (J. C. from N. Z.), ’94, A. C. 48, 63 L. J. P. C. 32.

[(c) ]Jones v. Festiniog R. Co. (1868) L. R. 3 Q. B. 733, 37 L. J. Q. B. 214. Here diligence was proved, but the company held nevertheless liable. The rule was expressly stated to be an application of the wider principle of Rylands v. Fletcher; see per Blackburn J. at p. 736.

[(d) ]Powell v. Fall (1880) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The use of traction engines on highways is regulated by statute, but not authorized in the sense of diminishing the owner’s liability for nuisance or otherwise; see the sections of the Locomotive Acts, 1861 and 1865, in the judgment of Mellor J. at p. 598. The dictum of Bramwell L. J. at p. 601, that Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247, p. 439, above, was wrongly decided, is extra-judicial. That case was not only itself decided by a Court of co-ordinate authority, but has been approved in the House of Lords; Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. at p. 202; and see the opinion of Blackburn J. at p. 197.

[(d) ]Sadler v. South Staffordshire, &c. Tramways Co. (1889) 23 Q. B. Div. 17, 58 L. J. Q. B. 421 (car ran off line through a defect in the points: the line did not belong to the defendant company, who had running powers over it).

[(e) ]It appears to be held everywhere that unless the original act is in itself unlawful, the gist of the action is negligence; see Cooley on Torts, 589-594.

[(f) ]Losee v. Buchanan (1873) 51 N. Y. 476; the owner of a steam-boiler was held not liable, independently of negligence, for an explosion which threw it into the plaintiff’s buildings. For the previous authorities as to fire, uniformly holding that in order to succeed the plaintiff must prove negligence, see at pp. 487-8. Rylands v. Fletcher is disapproved as being in conflict with the current of American authority.

[(g) ]Dixon v. Bell (1816) 5 M. & S. 198, 17 R. R. 308, and in Bigelow L. C. 568. It might have been said that sending an incompetent person to fetch a loaded gun was evidence of negligence (see the first count of the declaration); but that is not the ground taken by the Court (Lord Ellenborough C. J. and Bayley J.). Cp King v. Pollock (1874) 2 R. 42, a somewhat similar case in Scotland where the defendant was held not liable. But in Scotland culpable negligence has to be distinctly found.

[(h) ]Farrant v. Barnes (1862) 11 C. B. N. S. 553, 31 L. J. C. P. 137. The duty seems to be antecedent, not incident, to the contract of carriage.

[(i) ]Lyell v. Ganga Dai, I. L. R. 1 All. 60.

[(k) ]Boston & Albany R. R. Co. v. Shanly (1871) 107 Mass. 568; (“dualin,” a nitro-glycerine compound, and exploders, had been ordered by one customer of two separate makers, and by them separately consigned to the railway company without notice of their character: held on demurrer that both manufacturers were rightly sued in one action by the company).

[(l) ]See Smith v. Boston Gas Light Co., 129 Mass. 318.

[(m) ]Parry v. Smith (1879) 4 C. P. D. 325, 48 L. J. C. P. 731 (Lopes J.). Negligence was found as a fact.

[(n) ]Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602. The decision seems to be generally followed in America.

[(o) ]The jury found that there was not any negligence on the part of the intermediate dealers; the Court, however, were of opinion that this was immaterial.

[(p) ]See per Brett M. R., Heaven v. Pender (1883) 11 Q. B. Div. at p. 514, in a judgment which itself endeavours to lay down a much wider rule.

[(q) ]George v. Skivington (1869) L. R. 5 Ex. 1, 38 L. J. Ex. 8.

[(r) ]Dixon v. Bell (1816) 5 M. & S. 198, 17 R. R. 308, Bigelow L. C. 568 (supra, p. 455), has never been disapproved that we know of, but has not been so actively followed that the Court of Appeal need be precluded from free discussion of the principle involved. In Langridge v. Levy (1837) 2 M. & W. at p. 530, the Court was somewhat astute to avoid discussing that principle, and declined to commit itself. Dixon v. Bell is cited by Parke B. as a strong case, and apparently with hesitating acceptance, in Longmeid v. Holliday (1851) 6 Ex. 761, 20 L. J. Ex. 430.

[(s) ]20 L. J. Ex. at p. 433.

[(t) ]Per Montague Smith J. in Ex. Ch., Francis v. Cockrell (1870) Ex. Ch. L. R. 5 Q. B. 501, 513, 39 L. J. Q. B. 291. Other cases well showing this point are Pickard v. Smith, 10 C. B. N. S. 470; John v. Bacon (1870) L. R. 5 C. P. 437, 39 L. J. C. P. 365.

[(u) ]Sullivan v. Waters, 14 Ir. C. L. R. 460. See, however, Quarman v. Burnett (1840) 6 M. & W. at p. 510, where there is a suggestion of the modern rule.

[(x) ]Indermaur v. Dames (1866) L. R. 1 C. P. 274, 35 L. J. C. P. 184, 2 C. P. 311, 36 L. J. C. P. 181, constantly cited in later cases, and reprinted in Bigelow L. C.

[(y) ]L. R. 1 C. P. at p. 288.

[(z) ]L. R. 2 C. P. 311.

[(a) ]Chapman v. Rothwell (1858) 1 E. B. & E. 168, 27 L. J. Q. B. 315, treated as a very plain case, where a trap-door was left open in the floor of a passage leading to the defendant’s office.

[(b) ]See Holmes v. N. E. R. Co. (1869-71) L. R. 4 Ex. 254, in Ex. Ch. L. R. 6 Ex. 123, 40 L. J. Ex. 121; White v. France (1877) 2 C. P. D. 308, 46 L. J. C. P. 823.

[(c) ]Smith v. London & St. Katharine Docks Co. (1868) L. R. 3 C. P. 326, 37 L. J. C. P. 217 (Bovill C. J. and Byles J., dub. Keating J.).

[(d) ]Heaven v. Pender (1883) 11 Q. B. Div. 503, 52 L. J. Q. B. 702.

[(e) ]Per Cotton and Bowen L. JJ. 11 Q. B. Div. at p. 515. The judgment of Brett M. R. attempts to lay down a wider principle with which the Lords Justices did not agree. See p. 391 above. It must be taken as a fact, though it is not clearly stated, that the defective condition of the rope might have been discovered by reasonably careful examination when the staging was put up.

[(f) ]Miller v. Hancock, ’93, 2 Q. B. 177, 4 R. 478, C. A.

[(g) ]Francis v. Cockrell (1870) Ex. Ch. L. R. 5 Q. B. 184, 501, 39 L. J. Q. B. 113, 291. The plaintiff had paid money for admission, therefore there was a duty ex contractu, but the judgments in the Ex. Ch., see especially per Martin B., also affirm a duty independent of contract. This is one of the most explicit authorities showing that the duty extends to the acts of contractors as well as servants.

[(h) ]Foulkes v. Metrop. District R. Co. (1880) 5 C. P. Div. 157, 49 L. J. C. P. 361; Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

[(i) ]Elliott v. Hall (1885) 15 Q. B. D. 315, 54 L. J. Q. B. 518. The seller of coals sent them to the buyer in a truck with a dangerously loose trap-door in it, and the buyer’s servant in the course of unloading the truck fell through and was hurt.

[(k) ]Hayn v. Culliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372.

[(l) ]The Moorcock (1889) 14 P. Div. 64, 58 L. J. P. 73.

[(m) ]Lax v. Corporation of Darlington (1879) 5 Ex. Div. 28, 49 L. J. Ex. 105.

[(n) ]The Calliope, ’91, A. C. 11, 60 L. J. P. 28, reversing the decision of the C. A., 14 P. Div. 138, 58 L. J. P. 76, on a different view of the facts. The reasons given in The Moorcock, note (l) above, seem to be to some extent qualified by this, though the decision itself is approved by Lord Watson, ’91, A. C. at p. 22.

[(o) ]Foulkes v. Metrop. District R. Co. (1880) 5 C. P. Div. 157, 49 L. J. C. P. 361.

[(p) ]Hayn v. Culliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372.

[(q) ]Lax v. Corporation of Darlington (1879) 5 Ex. Div. 28, 49 L. J. Ex. 105 (the plaintiff’s cow was killed by a spiked fence round a statue in the market place). A good summary of the law, as far as it goes, is given in the argument of Cave J. (then Q.C.) for the plaintiff at p. 31. The question of the danger being obvious was considered not open on the appeal; if it had been, qu. as to the result, per Bramwell L. J. It has been held in Minnesota (1889) that the owner of a building frequented by the public is bound not to allow a man of known dangerous temper to be employed about the building: Dean v. St. Paul Union Depôt Co., 29 Am. Law Reg. 22.

[(r) ]Readhead v. Midland R. Co. (1869) Ex. Ch. L. R. 4 Q. B. 379; a case of contract between carrier and passenger, but the principle is the same, and indeed the duty may be put on either ground, see Hyman v. Nye (1881) 6 Q. B. D. 685, 689, per Lindley J. This does not however qualify the law as to the seller’s implied warranty on the sale of a chattel for a specific purpose; there the warranty is absolute that the chattel is reasonably fit for that purpose, and there is no exception of latent defects: Randall v. Newson (1877) 2 Q. B. Div. 102, 46 L. J. Q. B. 257.

[(s) ]Hyman v. Nye (1881) 6 Q. B. D. at p. 687.

[(t) ]Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden (1868) L. R. 3 C. P. 495, 37 L. J. C. P. 233; Losee v. Clute, 51 N. Y. 494.

[(u) ]P. 460, above.

[(v) ]Thomas v. Quartermaine, 18 Q. B. Div. 685, 56 L. J. Q. B. 340.

[(x) ]Dicta of L.JJ. ibid., and Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501. See further Yarmouth v. France, 19 Q. B. D. 647, and p. 153, above. Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683, was a case not of this class, but (as the facts were found) of negligence in conducting a specific operation.

[(y) ]9 C. B. 392, 19 L. J. C. P. 195 (1850); cp. D. 9. 2, ad leg. Aquil. 28.

[(z) ]Hurst v. Taylor (1885) 14 Q. B. D. 918, 54 L. J. Q. B. 310; defendants, railway contractors, had (within the statutory powers) diverted a footpath to make the line, but did not fence off the old direction of the path; plaintiff, walking after dark, followed the old direction, got on the railway, and fell over a bridge.

[(a) ]4 C. B. N. S. 556, 27 L. J. C. P. 318 (1858).

[(b) ]Cp. Sweeny v. Old Colony & Newport R. R. Co. (1865) 10 Allen (Mass.) 368, and Bigelow L. C. 660.

[(c) ]The language of the judgments leaves it not quite clear whether the continued permission to use the road for access to a public building (the Hanwell Lunatic Asylum) did not amount to an “invitation” in the special sense of this class of cases.

[(d) ]2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C. 578 (1863).

[(e) ]Per Pollock C. B. Cp. Scott v. London Dock Co. (1865) 3 H. & C. 596, 34 L. J. Ex. 220, p. 400, above.

[(f) ]Ex. Ch. L. R. 6 Q. B. 759, 40 L. J. Q. B. 285 (1871).

[(g) ]Per Cur. L. R. 6 Q. B. at pp. 761, 762.

[(h) ]Mullen v. St. John, 57 N. Y. 567, 569.

[(i) ]Tarry v. Ashton (1876) 1 Q. B. D. 314, 45 L. J. Q. B. 260.

[(j) ]Per Blackburn J. at p. 319.

[(k) ]Welfare v. London & Brighton R. Co. (1869) L. R. 4 Q. B. 693, 38 L. J. Q. B. 241; a decision on peculiar facts, where perhaps a very little more evidence might have turned the scale in favour of the plaintiff.

[(l) ]See Bower v. Peate (1876) 1 Q. B. D. 321, 45 L. J. Q. B. 446; Hughes v. Percival (1883) 8 App. Ca. 443, 52 L. J. Q. B. 719; and cp. Gorham v. Gross, 125 Mass. 232.

[(m) ]Willes J., Gautret v. Egerton (1867) L. R. 2 C. P. at p. 375.

[(n) ]Hounsell v. Smyth (1860) 7 C. B. N. S. 731, 29 L. J. C. P. 203.

[(o) ]Gautret v. Egerton (1867) L. R. 2 C. P. 371, 36 L. J. C. P. 191.

[(p) ]Sullivan v. Waters (1864) 14 Ir. C. L. R. 460.

[(q) ]Corby v. Hill (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318, p. 467, above.

[(r) ]Willes J., L. R. 2 C. P. at p. 373.

[(s) ]Bolch v. Smith (1862) 7 H. & N. 736, 31 L. J. Ex. 201.

[(t) ]Martin B., 7 H. & N. at p. 745. Batchelor v. Fortescue (1883) 11 Q. B. Div. 474, 478, seems rather to stand upon the ground that the plaintiff had gone out of his way to create the risk for himself. As between himself and the defendant, he had no title at all to be where he was. Cp. D. 9. 2. ad. leg. Aquil. 31, ad fin. “culpa ab eo exigenda non est, cum divinare non potuerit an per eum locum aliquis transiturus sit.” In Ivay v. Hedges (1882) 9 Q. B. D. 80, the question was more of the terms of the contract between landlord and tenant than of a duty imposed by law. Quaere, whether in that case the danger to which the tenant was exposed might not have well been held to be in the nature of a trap. The defect was a non-apparent one, and the landlord knew of it.

[(u) ]Cp. Blakemore v. Bristol and Exeter R. Co. (1858) 8 E. & B. 1035, 27 L. J. Q. B. 167, where it seems that the plaintiff’s intestate was not even a licensee; but see 11 Q. B. D. 516.

[(x) ]Southcote v. Stanley (1856) 1 H. & N. 247, 25 L. J. Ex. 339. But quaere if this explanation be not obscurum per obscurius. Cp. Abraham v. Reynolds, 5 H. & N. at p. 148, where the same line of thought appears.

[(y) ]Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

[(z) ]Horace Smith 38, Campbell 119.

[(a) ]See p. 387, above. Campbell, pp. 26, 27.