Part 1 — CHAPTER II NEGLIGENT INTERFERENCE (continued 6)

On the day of the accident, the defendants had a car at their depot which they had occasion to run over to their car house. It was attached to an engine and taken over the crossing, and to a proper distance beyond the switch. The coupling-pin was then taken out, the engine reversed, and it was moved towards the car house by the side track. The engine was provided with a good engineer and fireman, and the car with a brakeman; the bell was constantly rung, and the 208defendants were not guilty of any negligence in respect to the management of the car or engine.

As the engine and car were coming from the depot, the plaintiff, with a horse and a wagon loaded with empty beer barrels, was coming down South Street from the same direction. There was evidence tending to show that, as he approached the crossing, the flagman, who was at his post, made a signal to him with his flag to stop, which he did; that, in answer to an inquiry by the plaintiff whether he could then cross, he then made another signal with his flag, indicating that it was safe to cross; that the plaintiff started and attempted to cross, looking straight forward; that he saw the car coming near him as it went towards the car house; and that he jumped forward from his wagon, and the car knocked him down and ran over him and broke both his legs. It struck the fore-wheel of his wagon and also his horse. If he had remained in his wagon, or had not jumped forwards, or had kept about the middle of the crossing, the evidence showed that he would not have been injured personally. His wagon was near the left-hand side of the plank-crossing as he went.

The defendants contended that, even if the plaintiff used ordinary care, and if the flagman carelessly and negligently gave the signal that he might cross, when in fact it was unsafe to do so on account of the approaching car, the plaintiff was not entitled to recover, because the license to people to use the crossing was not a license to use it at the risk of the defendants, but to use it as they best could when not forbidden, taking care of their own safety, and going at their own risk; and also, that if the flagman made a signal to the plaintiff that he might cross, he exceeded his authority.

But the evidence being very contradictory as to the care used by the plaintiff, and also as to the care used by the flagman, the judge ruled, for the purpose of taking a verdict upon these two facts, that the defendants had a right to use the crossing as they did on this occasion, and that they were not bound to keep a flagman there; yet, since they did habitually keep one there, they would be responsible to the plaintiff for the injury done to him by the car, provided he used due care, if he was induced to cross by the signal made to him by the flagman, and if that signal was carelessly or negligently made at a time when it was unsafe to cross on account of the movement of the car.

The jury returned a verdict for the plaintiff for $7500; and the case was reserved for the consideration of the whole Court.

J. G. Abbott and P. H. Sears, for the defendants. The defendants had, for all purposes incident to the complete enjoyment of their franchise, the right of exclusive possession and use of the place where the accident happened, against the owners of the fee, and still more against all other persons. Hazen v. Boston & Maine Railroad, 2 Gray, 574; Brainard v. Clapp, 10 Cush. 6; Gen. Stat. c. 63, §§ 102, 103. The defendants were not bound to keep a flagman there, or exercise the 209other precautions prescribed for the crossing of highways or travelled places. Gen. Stat. c. 63, §§ 64–66, 83–91; Boston & Worcester Railroad v. Old Colony Railroad, 12 Cush. 608. The license or permission, if any, to the plaintiff to pass over the premises did not impose any duty on the defendants, but he took the permission, with its concomitant perils, at his own risk. Howland v. Vincent, 10 Met. 371, 374; Scott v. London Docks Co., 11 Law Times (N. S.), 383; Chapman v. Rothwell, El. Bl. & El. 168; Southcote v. Stanley, 1 Hurlst. & Norm. 247; Hounsell v. Smyth, 7 C. B. (N. S.) 729, 735, 742; Binks v. South Yorkshire Railway, &c., 32 Law Journ. (N. S.) Q. B. 26; Blithe v. Topham, 1 Rol. Ab. 88; S. C. 1 Vin. Ab. 555, pl. 4; Cro. Jac. 158. The defendants did not hold out to the plaintiff an invitation to pass over. Hounsell v. Smyth and Binks v. South Yorkshire Railway, above cited. The allowing or making of such private crossing was not in itself such an invitation, and did not involve the duty of such precautions. The keeping of a flagman there was wholly for the purpose of preventing persons from crossing, not for the purpose of holding out invitations at any time. The signal that the plaintiff might cross was in answer to his inquiry, and was, at most, only revoking the prohibition, or granting permission; it was not holding out an invitation. The duty of the flagman was simply to warn persons against crossing; and if the flagman held out an invitation or even gave permission to the plaintiff to cross, he went beyond the scope of his employment, and the defendants are not liable on account thereof. Lygo v. Newbold, 9 Exch. 203; Middleton v. Fowle, 1 Salk. 282. Even if the defendants had carelessly held out an invitation to the plaintiff to cross, still they would not be liable; for the report shows that after such supposed invitation the plaintiff might, by the exercise of ordinary care, have avoided the injury; that the plaintiff was himself at the time in the wrong; and that his own negligence and fault contributed to the accident. Todd v. Old Colony & Fall River Railroad, 7 Allen, 207; S. C. 3 Allen, 18, and cases cited; Denny v. Williams, 5 Allen, 1, and cases cited; Spofford v. Harlow, 3 Allen, 177, and cases cited.

Bigelow, C. J. This case has been presented with great care on the part of the learned counsel for the defendants, who have produced before us all the leading authorities bearing on the question of law which was reserved at the trial. We have not found it easy to decide on which side of the line which marks the limit of the defendant’s liability for damages caused by the acts of their agents, the case at bar falls. But on careful consideration we have been brought to the conclusion that the rulings at the trial were right, and that we cannot set aside the verdict for the plaintiff on the ground that it was based on erroneous instructions in matter of law.

In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist 210some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault, or negligence, or breach of duty, where there is no act, or service, or contract, which a party is bound to perform or fulfil. All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. Thus a trespasser who comes on the land of another without right cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrong-doers. So a licensee, who enters on premises by permission only, without an enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.

On the other hand, there are cases where houses or lands are so situated, or their mode of occupation and use is such, that the owner or occupant is not absolved from all care for the safety of those who come on the premises, but where the law imposes on him an obligation or duty to provide for their security against accident and injury. Thus the keeper of a shop or store is bound to provide means of safe ingress and egress to and from his premises for those having occasion to enter thereon, and is liable in damages for any injury which may happen by reason of any negligence in the mode of constructing or managing the place of entrance and exit. So the keeper of an inn or other place of public resort would be liable to an action in favor of a person who suffered an injury in consequence of an obstruction or defect in the way or passage which was held out and used as the common and proper place of access to the premises. The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement, or inducement, either express or implied, by which they have been led to enter thereon. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation 211on the part of the owner or person in possession to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby.

This distinction is fully recognized in the most recent and best considered cases in the English Courts, and may be deemed to be the pivot on which all cases like the one at bar are made to turn. In Corby v. Hill, 4 C. B. (N. S.) 556, the owner of land, having a private road for the use of persons coming to his house, gave permission to a builder engaged in erecting a house on the land to place materials on the road; the plaintiff, having occasion to use the road for the purpose of going to the owner’s residence, ran against the materials and sustained damage, for which the owner was held liable. Cockburn, C. J., says: “The proprietors of the soil held out an allurement whereby the plaintiff was induced to come on the place in question; they held this road out to all persons having occasion to proceed to the house as the means of access thereto.” In Chapman v. Rothwell, El. Bl. & El. 168, the proprietor of a brewery was held liable in damages for injury and loss of life caused by permitting a trap-door to be open without sufficient light or proper safeguards, in a passageway through which access was had from the street to his office. This decision was put on the ground that the defendant, by holding out the passageway as the proper mode of approach to his office and brewery, invited the party injured to go there, and was bound to use due care in providing for his safety. This is the point on which the decision turned, as stated by Keating, J., in Hounsell v. Smyth, 7 C. B. (N. S.) 738. In the last-named case the distinction is clearly drawn between the liability of a person who holds out an inducement or invitation to others to enter on his premises by preparing a way or path by means of which they can gain access to his house or store, or pass into or over the land, and in a case where nothing is shown but a bare license or permission tacitly given to go upon or through an estate, and the responsibility of finding a safe and secure passage is thrown on the passenger and not on the owner. The same distinction is stated in Barnes v. Ward, 9 C. B. 392; Hardcastle v. 212South Yorkshire Railway, &c., 4 Hurlst. & Norm. 67; and Binks v. South Yorkshire Railway, &c., 32 Law Journ. (N. S.) Q. B. 26. In the last cited case the language of Blackburn, J., is peculiarly applicable to the case at bar. He says, “There might be a case where permission to use land as a path may amount to such an inducement as to lead the persons using it to suppose it a highway, and thus induce them to use it as such.” See also, for a clear statement of the difference between cases where an invitation or allurement is held out by the defendant, and those where nothing appears but a mere license or permission to enter on premises, Bolch v. Smith, 7 Hurlst. & Norm. 741, and Scott v. London Docks Co., 11 Law Times (N. S.), 383.

The facts disclosed at the trial of the case now before us, carefully weighed and considered, bring it within that class in which parties have been held liable in damages by reason of having held out an invitation or inducement to persons to enter upon and pass over their premises. It cannot in any just view of the evidence be said that the defendants were passive only, and gave merely a tacit license or assent to the use of the place in question as a public crossing. On the contrary, the place or crossing was situated between two streets of the city (which are much frequented thoroughfares), and was used by great numbers of people who had occasion to pass from one street to the other, and it was fitted and prepared by the defendants with a convenient plank-crossing, such as is usually constructed in highways, where they are crossed by the tracks of a railroad, in order to facilitate the passage of animals and vehicles over the rails. It had been so maintained by the defendants for a number of years. These facts would seem to bring the case within the principle already stated, that the license to use the crossing had been used and enjoyed under such circumstances as to amount to an inducement, held out by the defendants to persons having occasion to pass, to believe that it was a highway, and to use it as such. But the case does not rest on these facts only. The defendants had not only constructed and fitted the crossing in the same manner as if it had been a highway, but they had employed a person to stand there with a flag, and to warn persons who were about to pass over the railroad when it was safe for them to attempt to cross with the vehicles and animals, without interference or collision with the engines and cars of the defendants. And it was also shown that when the plaintiff started to go over the tracks with his wagon, it was in obedience to a signal from this agent of the defendants that there was no obstruction or hindrance to his safe passage over the railroad. These facts well warranted the jury in finding, as they must have done in rendering a verdict for the plaintiff under the instructions of the Court, that the defendants induced the plaintiff to cross at the time when he attempted to do so, and met with the injury for which he now seeks compensation.

213It was suggested that the person employed by the defendants to stand near the crossing with a flag exceeded his authority in giving a signal to the plaintiff that it was safe for him to pass over the crossing just previously to the accident, and that no such act was within the scope of his employment, which was limited to the duty of preventing persons from passing at times when it was dangerous to do so. But it seems to us that this is a refinement and distinction which the facts do not justify. It is stated in the report that the flagman was stationed at the place in question, charged among other things with the duty of protecting the public. This general statement of the object for which the agent was employed, taken in connection with the fact that he was stationed at a place constructed and used as a public way by great numbers of people, clearly included the duty of indicating to persons when it was safe for them to pass, as well as when it was prudent or necessary for them to refrain from passing.

Nor do we think it can be justly said that the flagman in fact held out no inducement to the plaintiff to pass. No express invitation need have been shown. It would have been only necessary for the plaintiff to prove that the agent did some act to indicate that there was no risk of accident in attempting to pass over the crossing. The evidence at the trial was clearly sufficient to show that the agent of the defendants induced the plaintiff to pass, and that he acted in so doing within the scope of the authority conferred on him. The question whether the plaintiff was so induced was distinctly submitted to the jury by the Court; nor do we see any reason for supposing that the instructions on this point were misunderstood or misapplied by the jury. If they lacked fulness, the defendants should have asked for more explicit instructions. Certainly the evidence as reported well warranted the finding of the jury on this point.

It was also urged that, if the defendants were held liable in this action, they would be made to suffer by reason of the fact that they had taken precautions to guard against accident at the place in question, which they were not bound to use, and that the case would present the singular aspect of holding a party liable for neglect in the performance of a duty voluntarily assumed, and which was not imposed by the rules of law. But this is by no means an anomaly. If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who rightfully are led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence. The liability in such cases does not depend on the motives or considerations which induced a party to take on himself a particular task or duty, but on the question whether the legal rights of others have been violated by the mode in which the charge assumed has been performed.

214The Court were not requested at the trial to withdraw the case from the jury on the ground that the plaintiff had failed to show he was in the exercise of due care at the time the accident happened. Upon the evidence, as stated in the report, we cannot say, as matter of law, that the plaintiff did not establish this part of his case.

Judgment on the verdict.

After the above decision was rendered, the verdict was set aside, by Chapman, J., as against the evidence.^[160]

STEVENS v. NICHOLS Supreme Judicial Court, Massachusetts, February 23, 1892. Reported in 155 Massachusetts Reports, 472.

Tort, to recover for injuries occasioned to the plaintiff by driving over a curbstone covered with snow in a private way controlled by the defendants. At the trial in the Superior Court, Mason, C. J., at the defendants’ request, ruled that, upon the pleadings and the plaintiff’s opening, he could not maintain the action, and ordered a verdict for the defendants; and the plaintiff alleged exceptions. The facts, so far as material to the points decided, appear in the opinion.

John L. Thorndike, for the defendants.^[161]

This case bears no resemblance to Holmes v. Drew, 151 Mass. 578, where the defendant had constructed a brick sidewalk by the side of a public street, partly on her own land and partly in the street, without any line of separation, and so that the whole was apparently part of the street, and the defendant clearly intended that it should be used 215as part of the street. There is no similarity between such an addition to the apparent width of a public street and the opening of a private avenue or way out of a public street. The private way could not have been, or intended to be, part of the public street, and the separation between them was plain....

The absence of similarity between this case and Holmes v. Drew, 151 Mass. 578, has already been pointed out; but it is also submitted that that case is the first in which it has ever been held that the owner of land was under any obligation to make it safe for a person that was allowed to come upon the land for his own convenience, and for a purpose in which the owner had no interest, whether the owner gave his consent in the form of a permission or in the form of what might, in common language, be called an invitation. Such persons were called licensees, and must take the land as they found it, subject only to this, that the owner must not lead them into danger by “something like fraud.” Gautret v. Egerton, L. R. 2 C. P. 371, 374–375; Reardon v. Thompson, 149 Mass. 267, 268; Pollock on Torts, 424–426....

But as regards persons coming upon land at the request, actual or tacit, of the owner upon business or for a purpose in which the owner had an interest, it was his duty to make it reasonably safe, and he was liable for damages arising from a neglect of this duty. Indermaur v. Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216 (rock by wharf at which vessel unloaded); The Moorcock, 14 P. D. 64 (a similar case); Davis v. Central Congregational Society, 129 Mass. 367 (plaintiff attending a conference of churches at defendant’s meeting-house, an object in which both parties had an interest; also, p. 371, “a dangerous place without warning”); Pollock on Torts, 415–418.

It is this common interest, not the form of the license or invitation, that creates the liability (Holmes v. North Eastern Ry. Co., L. R. 4 Ex. 254, 6 Ex. 123).

The distinction between these two classes of cases is that in one the owner of the land has an interest in the person’s coming there, while in the other the authority to come upon the land is a pure gratuity. It is reasonable that the owner should undertake some duty in respect of the condition of the land when he brings another person there for an object in which he himself has an interest. But there is no reason why he should undertake any such duty when he makes a gift of the privilege of going upon his land. The privilege is only a gift, whether the owner gives it because it is asked for, or whether he offers it first, or asks or “invites” the other to accept it. It may in a sense be said that a person is “induced” to go upon land by a license or permission of the owner, but the real inducement is his own convenience. When the owner asks him to walk over his land whenever it is agreeable to him, and he goes there, he does so because it is agreeable to him, and not because the owner asks him. He is in law a licensee going upon the 216land for his own convenience by the owner’s permission, and not a person brought there for a purpose in which the owner has an interest.^[162]

Licensees, however, have a right to expect that the owner will not create a new danger while the license continues, and he is liable for the consequences if he does create such a danger; e. g., by making an excavation near a path, as in Oliver v. Worcester, 102 Mass. 489, 502, or by placing an obstruction in an avenue, as in Corby v. Hill, 4 C. B. N. S. 556, 567, or by carelessly throwing a keg into a passageway, as in Corrigan v. Union Sugar Refinery, 98 Mass. 577, or by negligent management of trains at a private crossing of a railway habitually used by the public with the assent of the company, as in Sweeny v. Old Colony Rld. Co., 10 Allen, 368; Murphy v. Boston & Albany Rld. Co., 133 Mass. 121; Hanks v. Boston & Albany Rld. Co., 147 Mass. 495; Byrne v. New York Central Rld. Co., 104 N. Y. 362; Swift v. Staten Island Rld. Co., 123 N. Y. 645; Taylor v. Delaware & Hudson Canal Co., 113 Pa. St. 162, 175.

The principle of these cases is stated by Willes, J., in Gautret v. Egerton, L. R. 2 C. P., p. 373, as follows: “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.”

The same principle is alluded to in June v. Boston & Albany Rld. Co., 153 Mass. p. 82, where the court speaks of “cases in which even unintended damage done to a licensee by actively bringing force to bear upon his person will stand differently from merely passively leaving land in a dangerous condition.”

217The cases above mentioned include all that are cited in Holmes v. Drew, 151 Mass. 580. In none of them is it held or suggested that the railway company was liable for any defect or obstruction in the crossing, or that the landowner was liable for any excavation or obstruction existing when the permission was granted.

[After citing cases where the court said that some kind of inducement or invitation was necessary to create a liability for want of care in running trains.] But it was not suggested that the inducement or invitation would create any liability for defects in the crossing itself which the company gratuitously allowed the public to use.

[Referring to cases where there is implied license to the public to use a crossing.] The probability known to the company that some one may be there in pursuance of the license is treated ... as the ground of liability in such cases for want of care in running trains.... But there is nothing in any of the cases above mentioned tending to support the proposition that the knowledge of the habitual use of the crossing, pursuant to the implied permission, would create a liability for defects in the crossing itself or impose any kind of duty to make it safe or convenient.

Holmes v. Drew (151 Mass. 578) does not belong to either of the two last classes of cases. The plaintiff (1) did not go there upon the defendant’s land for any purpose in which the defendant was interested, and (2) the defendant did nothing to make the place less safe than it was when it was first opened to the public. The plaintiff was a volunteer, going upon the defendant’s land with her full permission, but entirely for his own convenience. These distinctions do not appear to have been called to the attention of the court. The judgment, which is very short, seems to proceed upon the ground that the defendant, by paving a footway partly on her own land and allowing it to remain apparently a part of the street, showed an intention that it should be used by foot passengers, and that this would amount to an implied invitation, which imposed on her a duty to make it reasonably safe. If this is to be taken literally, a permission ceases to be a license if it is intended that it shall be used; and an invitation imposes the same duty when it is given gratuitously for the pleasure of the donee as when it is given for an object in which the giver has an interest; and the owner of land that gives permission to cross his land can escape liability only by proving that he did not intend the permission to be used. It is submitted that the authorities cited in that case do not support this doctrine. Two of them are cases where the invitation was to come upon the land for a purpose in which the owner had an interest, and in the three others a licensee was injured by negligence in something done after the license was given....

Lathrop, J. The declaration in this case, so far as material to the questions presented at the argument, alleged that the defendants on 218the day of the accident were, and had been for a long time, lessees and occupants of an estate on Atlantic Avenue in Boston; that the defendants maintained a way or street down by their premises, “leading out of said Atlantic Avenue, and extending to other premises beyond; that said street was in all particulars like the public streets of the city of Boston, being paved with granite blocks, and having sidewalks, and to all appearances was a public thoroughfare; that the defendants had placed no sign or notice of any kind upon or about said street ... which would give warning to the plaintiff or to the public that said street was private property, or dangerous, but had erected a granite curbing out into said street, extending one half the distance across the same, on a line with the rear of their estate, said granite curbing being from six to seven inches above the grade of the paving; that said obstruction was dangerous both by day and by night to all persons who entered upon or passed through said street; that on or about said day the plaintiff had business that called him to the premises that lie beyond the estate of the defendants on said street, and, supposing and assuming that said street was a highway, and being induced by the acts and omissions of these defendants to so suppose and assume, entered in and upon said street to drive through the same; that said obstruction was covered by snow at said time, and plaintiff was unable to see the same; and, while in the exercise of due care, his sleigh struck said granite curbing,” and he was thrown out and injured.

The opening of the plaintiff’s counsel added but little to the declaration. It stated that “the snow lay perfectly level” where the curbstone was; that the plaintiff was driving through the defendants’ way “into the way lying beyond, of which it was ... an extension,” to reach the works of the company for which he was working. It also stated that, before the defendants controlled the way under the written lease, they owned the premises, erected the building, paved the way, and put in the curbstone; “that ever since this building and other buildings had been erected down there the public made use of that way, as they would use any other street in the city; that is, as much as they had any occasion to pass down there with teams or on foot.”

It does not appear that the plaintiff had any right in the way, unless he had it as one of the public. There is no allegation or statement that the plaintiff had ever used the way before, or that he knew the way was paved, or noticed whether there was a sign or not. Indeed, if he was then using the way for the first time, the fair inference would be, from the statement of the condition of the snow, that the fact that the way was paved was unknown to him until after the accident, and did not operate as an inducement to enter the way. The declaration contained no allegation as to any use by the public of the way, and the statement in the opening of counsel, that the public made use of that way, was qualified by the words, “that is, as much as they 219had any occasion to pass down there with teams or on foot.” It is difficult to see how vehicles of any description could, when the paving was sufficiently visible to act as an inducement, go over that portion of the way which the defendants controlled.

Without laying stress upon these points, we are of opinion that the declaration and the opening of the plaintiff’s counsel do not show that there was any breach on the part of the defendants of any duty which they owed the plaintiff. The defendants were not obliged to put up a sign notifying travellers on the public street that the passageway was not a public way. Galligan v. Metacomet Manuf. Co., 143 Mass. 527; Reardon v. Thompson, 149 Mass. 267; Redigan v. Boston & Maine Railroad, ante, 44.^[163]

Nor can the fact that the passageway was paved be considered an invitation or inducement to the public to enter upon it for their own convenience. The defendants have a right to pave it for their own use or for the use of their customers. Johnson v. Boston & Maine Railroad, 125 Mass. 75; Heinlein v. Boston & Providence Railroad, 147 Mass. 136; Reardon v. Thompson, 149 Mass. 267; Donnelly v. Boston & Maine Railroad, 151 Mass. 210; Redigan v. Boston & Maine Railroad, ante, 44.

There was in this case no allegation and no statement that the defendants had any knowledge that the public was using the passageway, or of such a condition of things that it can be said that they must have known of it. But if it be assumed that there was such use and such acquiescence that a license might be implied, the plaintiff stands in no better position. “The general rule is,” as stated by Mr. Justice Holmes in Reardon v. Thompson, ubi supra, “that a licensee goes upon land at his own risk, and must take the premises as he finds them.” See also Redigan v. Boston & Maine Railroad, ante, 44; Gautret v. Egerton, L. R. 2 C. P. 371, 374.

The licensor has, however, no right to create a new danger while the license continues. Oliver v. Worcester, 102 Mass. 489, 502; Corrigan v. Union Sugar Refinery, 98 Mass. 577; Corby v. Hill, 4 C. B. (N. S.) 556. So a railroad company which allows the public habitually to use a private crossing of its tracks cannot use active force against a person or vehicle crossing under a license, express or implied. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368; Murphy v. Boston & Albany Railroad, 133 Mass. 121; Hanks v. Boston & Albany Railroad, 147 Mass. 495. See June v. Boston & Albany Railroad, 153 Mass. 79, 82.

We have no occasion to consider whether the case of Holmes v. Drew, 151 Mass. 578, is open to the criticism that it is inconsistent with the doctrine that a person who dedicates a footway to the public use is not obliged to keep it in repair (see Fisher v. Prowse, 2 B. & S. 770, 780, and Robbins v. Jones, 15 C. B. (N. S.) 221) as we are of 220opinion that that case has no application to the case at bar. In Holmes v. Drew, the defendant made a continuous pavement in front of his house, partly on his own land and partly on the public land; and it was held that the jury might infer from this an invitation to walk over the whole pavement. In the case at bar, the defendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it, even though it were paved.

Exceptions overruled.^[164]

TUTTLE v. GILBERT MANUFACTURING CO. Supreme Judicial Court, Massachusetts, October 20, 1887. Reported in 145 Massachusetts Reports, 169.

Tort, by lessee of a building against lessor. The lessee claimed, and introduced evidence to show, that, at the time of letting, the lessor agreed to repair the building and put it in safe condition; that the lessee suffered damage by reason of a defect in the building; and that the lessor failed and neglected to make repairs until after the damage to the plaintiff.

Upon the evidence, the judge ruled that plaintiff could not recover, and ordered a verdict for defendant. Plaintiff excepted.^[165]

Morton, C. J. It is the general rule that there is no warranty implied in the letting of premises that they are reasonably fit for use. The lessee takes an estate in the premises hired, and he takes the risk of the quality of the premises, in the absence of an express or implied warranty by the lessor, or of deceit. A lessee, therefore, if he is injured by reason of the unsafe condition of the premises hired, cannot maintain an action against the lessor, in the absence of warranty or of misrepresentation. In cases where lessors have been held liable for such injuries to the lessees, the liability is founded in negligence. Looney v. McLean, 129 Mass. 33. Bowe v. Hunking, 135 Mass. 380, and cases cited.

221The plaintiff admits the general rule, but contends that this case is taken out of it because, at the time of the letting, the defendant agreed to repair and put in a safe condition the stable floor, the unsafe condition of which caused the injury. The contract relied on is a loose one; it fixed no time within which the repairs were to be made, and it is doubtful whether the evidence proved any breach of contract on the part of the defendant. But if we assume that the contract was to make the repairs within a reasonable time, and that the jury would be justified in finding that the defendant had not performed it within a reasonable time, the question is whether, for such a breach, the plaintiff can maintain an action of tort to recover for personal injuries sustained by reason of the defective condition of the stable floor.

The cases are numerous and confusing as to the dividing line between actions of contract and of tort, and there are many cases where a man may have his election to bring either action. Where the cause of action arises merely from a breach of promise, the action is in contract.

The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus the promisor be made liable for all the consequential damages arising from such failure.

As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. In the case at bar, the utmost shown against the defendant is that there was unreasonable delay on its part in performing an executory contract. As we have seen, it is not liable by reason of the relation of lessor and lessee, but its liability, if any, must rest solely upon a breach of this contract.

We do not see how the cases would differ in principle if an action were brought against a third person who had contracted to repair the stable floor and had unreasonably delayed in performing his contract. We are not aware of any authority for maintaining such an action. If the defendant had performed the work contemplated by its contract unskilfully and negligently, it would be liable to an action of tort, because in such case there would be a misfeasance, which is a sufficient foundation for an action of tort. Such was the case of Gill v. Middleton, 105 Mass. 477.

The case of Ashley v. Root, 4 Allen, 504, does not conflict with our view, but recognizes the rule that to sustain an action of tort there must be more than a mere breach of contract.

The plaintiff now argues that he had the right to go to the jury upon the questions of warranty and deceit. It does not appear that this claim was made in the Superior Court; but it is clear that there 222is no sufficient evidence of any warranty that the stable was safe, or of any deceit or misrepresentation on the part of the defendant or its agent.

Exceptions overruled.^[166]

SOUTHCOTE v. STANLEY In the Exchequer, June 4, 1856. Reported in 1 Hurlstone & Norman, 247.

The declaration stated that at the time of the committing of the grievances, &c., the defendant was possessed of an hotel, into which he had then permitted and invited the plaintiff to come as a visitor of the defendant, and in which the plaintiff as such visitor then lawfully was by the permission and invitation of the defendant, and in which hotel there then was a glass door of the defendant which it was then necessary for the plaintiff, as such visitor, to open for the purpose of leaving the hotel, and which the plaintiff, as such visitor, then by the permission of the defendant and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid, as a door which was in a proper condition to be opened; nevertheless, by and through the mere carelessness, negligence, and default of the defendant in that behalf, the said door was then in an insecure and dangerous condition, and unfit to be used or opened, and by reason of the said door being in such insecure and dangerous condition and unfit, as aforesaid, and of the then carelessness, negligence, default, and improper conduct of the defendant in that behalf, a large piece of glass from the said door fell out of the same to and upon the plaintiff, and wounded him, and he sustained divers bodily injuries, and remained ill and unable to work for a long time, &c.

Demurrer and joinder therein.

Raymond, in support of the demurrer. The declaration discloses no cause of action. It is not stated that the plaintiff was in the hotel 223as a guest, but merely as a visitor; and there is no allegation that the defendant knew of the dangerous condition of the door. To render the defendant liable, the declaration ought to have shown some contract between the plaintiff and the defendant which imposed on the latter the obligation of taking care that the door was secure; or it should have alleged some negligence on the part of the defendant in the performance of a duty which he owed to the plaintiff. [Bramwell, B. If a person invites another into his house, and the latter can only enter through a particular door, is it not the duty of the former to take care that the door is in a secure condition?] He may not be aware that the door is insecure. This declaration only alleges that through the carelessness, negligence, and default of the defendant the door was in a dangerous condition; that cannot be read as involving the allegation that the defendant knew that the door was insecure. All facts necessary to raise a legal liability must be strictly averred. Metcalfe v. Hetherington, 11 Exch. 257. [Alderson, B. It is not stated that it was the duty of the defendant, as an hotel keeper, to take care that the door was secure. Suppose a person invites another to his house, and the latter runs his hand through a pane of glass, how is the former liable?] The Court then called on

Gray, contra. The declaration shows a duty on the part of the defendant, and a breach of that duty. It is immaterial whether the injury takes place in a private house, or in a shop, or in a street; the only question is whether the person who complains was lawfully there? The case is similar in principle to that of Randleson v. Murray, 8 A. & E. 109, which decided that a warehouseman who lowers goods from his warehouse is bound to use proper tackle for that purpose. [Alderson, B. It is the duty of every person who hangs anything over a public way to take care that it is suspended by a proper rope.] Whether it be a private house or a shop, a duty is so far imposed on the occupier to keep it reasonably secure, that if a person lawfully enters, and through the negligence of the occupier in leaving it in an insecure state receives an injury, the occupier is responsible. Here it is alleged that the defendant invited the plaintiff to come into the hotel as a visitor; that shows that he was lawfully there. [Pollock, C. B. The position that an action lies because the plaintiff was lawfully in the house, cannot be supported; a servant is lawfully in his master’s house and yet if the balusters fell, whereby he was injured, he could not maintain an action against the master. If a lady who is invited to dinner goes in an expensive dress, and a servant spills something over her dress which spoils it, the master of the house would not be liable. Where a person enters a house by invitation the same rule prevails as in the case of a servant. A visitor would have no right of action for being put in a damp bed, or near a broken pane of glass, whereby he caught cold. Alderson, B. The case of a shop is different, because a shop is open to the public; and there is a distinction 224between persons who come on business and those who come by invitation.]

Pollock, C. B. We are all of opinion that the declaration cannot be supported, and that the defendant is entitled to judgment. I do not think it necessary to point out the reasons by which I have come to that conclusion; because it follows from the decision of this Court (Priestley v. Fowler, 3 M. & W. 1) that the mere relation of master and servant does not create any implied duty on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. That decision has been followed by several cases,^[167] and is now established law, though I believe the principle was not recognized until recent times. The reason for the rule is that the servant undertakes to run all the ordinary risks of service, including those arising from the negligence of his fellow-servants. The rule applies to all the members of a domestic establishment, so that the master is not in general liable to a servant for injury resulting from the negligence of a fellow-servant; neither can one servant maintain an action against another for negligence whilst engaged in their common employment. The same principle applies to the case of a visitor at a house; whilst he remains there he is in the same position as any other member of the establishment, so far as regards the negligence of the master or his servants, and he must take his chance with the rest.

Alderson, B. I am of the same opinion.

Bramwell, B. I agree with Mr. Gray to this extent, that where a person is in the house of another, either on business or for any other purpose, he has a right to expect that the owner of the house will take reasonable care to protect him from injury; for instance, that he will not allow a trap-door to be open through which the visitor may fall. But in this case my difficulty is to see that the declaration charges any act of commission. If a person asked another to walk in his garden, in which he had placed spring-guns or men-traps, and the latter, not being aware of it, was thereby injured, that would be an act of commission. But if a person asked a visitor to sleep at his house, and the former omitted to see that the sheets were properly aired, whereby the visitor caught cold, he could maintain no action, for there was no act of commission, but simply an act of omission. This declaration merely alleges that “by and through the mere carelessness, negligence, default, and improper conduct of the defendant,” the glass fell from the door. That means a want of care,—a default in not doing something. The words are all negatives, and under these circumstances the action is not maintainable. I doubted whether the words “carelessness, negligence, and improper conduct,” &c., might not mean something equivalent to actual commission, but on the best consideration which I can give the subject, it appears to me that they do not 225mean that, but merely point to a negative. If I misconstrue the declaration it is the fault of those who so framed it.

Judgment for the defendant.^[168]

BEEHLER v. DANIELS Supreme Court, Rhode Island, May 1, 1894. Reported in 18 Rhode Island Reports, 563.

Trespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.

Stiness, J. The plaintiff seeks to recover for injury caused by falling into an elevator well in the defendants’ building, which he entered in the discharge of his duty, as a member of the fire department of the city of Providence, in answering a call to extinguish a fire. The negligence alleged in the first count is a failure to guard and protect the well; and in the second count such a packing of merchandise as to guide and conduct one to the unguarded and unprotected well. The defendants demur to the declaration, alleging as grounds of demurrer that they owed no duty to the plaintiff; that he entered their premises in the discharge of a public duty and assumed the risks of his employment; that he was in the premises without invitation from them; and that they are not liable for consequences which they could not and were not bound to foresee.

The decisive question thus raised is, Did the defendants, under the circumstances, owe to the plaintiff a duty, for failure in which they are liable to him in damages? The question is not a new one, and we think it is safe to say that it has never been answered otherwise than in favor of the defendants. The plaintiff argues that it was his duty to enter the premises, and, consequently, since an owner may reasonably anticipate the liability of a fire, a duty arises from the owner to the fireman to keep his premises guarded and safe. An extension of this argument to its legitimate result, as a rule of law, is sufficiently startling to show its unsoundness. The liability to fire is common to all buildings and at all times. Hence every owner of every building must at all times keep every part of his property, in such condition, that a fireman, unacquainted with the place, and groping about in darkness and smoke, shall come upon no obstacle, opening, machine or anything whatever which may cause him injury. This argument was urged in Woodruff v. Bowen, 136 Ind. 431; but 226the court said: “We are of the opinion that the owner of a building in a populous city does not owe it as a duty at common law, independent of any statute or ordinance, to keep such building safe for firemen or other officers, who, in a contingency, may enter the same under a license conferred by law.”

Undoubtedly the plaintiff in this case had the right to enter the defendants’ premises, and the character of his entry was that of a licensee. Cooley on Torts, *313. But no such duty as is averred in this declaration is due from an owner to a licensee. This question is discussed in the case just cited, as also in many others. For example, in Reardon v. Thompson, 149 Mass. 267, Holmes, J., says: “But the general rule is that a licensee goes upon land at his own risk, and must take the premises as he finds them. An open hole, which is not concealed otherwise than by the darkness of the night, is a danger which a licensee must avoid at his peril.” So in Mathews v. Bensel, 51 N. J. Law, 30, Beasley, C. J., says: “The substantial ground of complaint laid in the count is, that the defendants did not properly construct their planer, and, being a dangerous instrument, did not surround it with proper safeguards. But there is no legal principle that imposes such a duty as this on the owner of property with respect to a mere licensee. This is the recognized rule. In the case of Holmes v. Northeastern Railway Co., L. R. 4 Exch. 254, 256, Baron Channell says: ‘That where a person is a mere licensee he has no cause of action on account of the dangers existing in the place he is permitted to enter.’” In Parker v. Portland Publishing Co., 69 Me. 173, this question is fully examined, the court holding it to be well settled, if the plaintiff was at the place where the injury was received by license merely, that the defendant would owe him no duty and that he could not recover. See also Indiana, etc., Railway Co. v. Barnhart, 115 Ind. 399; Gibson v. Leonard, 37 Ill. App. 344; Bedell v. Berkey, 76 Mich. 435.

There is a clear distinction between a license and an invitation to enter premises, and an equally clear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation. The plaintiff’s declaration does not set out a cause of action upon either of these grounds, and the cases cited and relied on by him fall within the two classes of cases described, and mark the line of duty very clearly. Parker v. Barnard, 135 Mass. 116, was the case of a police officer who had entered a building, the doors of which were found open in the night time, to inspect it according to the rules of the police department, and fell down an unguarded elevator well. A statute required such wells to be protected by railings and trap-doors. Judgment 227having been given for the defendant at the trial, a new trial was ordered upon the ground of a violation of statute. The court says: “The owner or occupant of land or a building is not liable, at common law, for obstructions, pitfalls, or other dangers there existing, as, in the absence of any inducement or invitation to others to enter, he may use his property as he pleases. But he holds his property ‘subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the Constitution of the Commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare.’” Then, likening the plaintiff to a fireman, the court also says: “Even if they must encounter the danger arising from neglect of such precautions against obstructions and pitfalls as those invited or induced to enter have a right to expect, they may demand, as against the owners or occupants, that they observe the statute in the construction and management of their building.” In Learoyd v. Godfrey, 138 Mass. 315, a police officer fell down an uncovered well in or near a passageway to a house where he was called to quell a disturbance of the peace. A verdict for the plaintiff was sustained upon the ground that the jury must have found that the officer was using the passageway by the defendant’s invitation and that the evidence warranted the finding. Gordon v. Cummings, 152 Mass. 513, was the case of a letter carrier who fell into an elevator well, in a hallway where he was accustomed to leave letters in boxes put there for that purpose. The court held that there was an implied invitation to the carrier to enter the premises. In Engel v. Smith, 82 Mich. 1, the plaintiff fell through a trap-door left open in a building where he was employed. The question of duty is not discussed in the case but simply the fact of negligence. In Bennett v. Railroad Co., 102 U. S. 577, the plaintiff, a passenger, fell through a hatch hole in the depot floor. The court construed the declaration as setting out facts which amounted to an invitation to the plaintiff to pass over the route which he took through the shed depot where the hatch hole was.

In the present case the plaintiff sets out no violation of a statute, or facts which amount to an invitation, and, consequently, under the well-settled rule of law, the defendants were under no liability to him for the condition of their premises or the packing of their merchandise. The demurrer to the declaration must therefore be sustained.^[169]

228

Section VII Liability to Third Persons of Maker or Vendor of a Chattel

WINTERBOTTOM v. WRIGHT In the Exchequer, June 6, 1842. Reported in 10 Meeson & Welsby, 109.

Case. The declaration stated, that the defendant was a contractor for the supply of mail-coaches, and had in that character contracted for hire and reward with the Postmaster-General, to provide the mail-coach for the purpose of conveying the mail-bags from Hartford, in the county of Chester, to Holyhead: That the defendant, under and by virtue of the said contract, had agreed with the said Postmaster-General that the said mail-coach should, during the said contract, be kept in a fit, proper, safe, and secure state and condition for the said purpose, and took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach; and it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition for the purpose aforesaid: That Nathaniel Atkinson and other persons, having notice of the said contract, were under contract with the Postmaster-General to convey the said mail-coach from Hartford to Holyhead, and to supply horses and coachmen for that purpose, and also not, on any pretence whatever, to use or employ any other coach or carriage whatever than such as should be so provided, directed, and appointed by the Postmaster-General: That the plaintiff, being a mail-coachman, and thereby obtaining his livelihood, and whilst the said several contracts were in force, having notice thereof, and trusting to and confiding in the contract made between the defendant and the Postmaster-General, and believing that the said coach was in a fit, safe, secure, and proper state and condition for the purpose 229aforesaid, and not knowing and having no means of knowing to the contrary thereof, hired himself to the said Nathaniel Atkinson and his co-contractors as mail-coachman, to drive and take the conduct of the said mail-coach, which but for the said contract of the defendant he would not have done. The declaration then averred, that the defendant so improperly and negligently conducted himself, and so utterly disregarded his aforesaid contract, and so wholly neglected and failed to perform his duty in this behalf, that heretofore, to wit, on the 8th of August, 1840, whilst the plaintiff, as such mail-coachman so hired, was driving the said mail-coach from Hartford to Holyhead, the same coach, being a mail-coach found and provided by the defendant under his said contract, and the defendant then acting under his said contract, and having the means of knowing and then well knowing all the aforesaid premises, the said mail-coach being then in a frail, weak, infirm, and dangerous state and condition, to wit, by and through certain latent defects in the state and condition thereof, and unsafe and unfit for the use and purpose aforesaid, and from no other cause, circumstance, matter, or thing whatsoever gave way and broke down, whereby the plaintiff was thrown from his seat, and, in consequence of injuries then received, had become lamed for life.

To this declaration the defendant pleaded several pleas, to two of which there were demurrers; but, as the Court gave no opinion as to their validity, it is not necessary to state them.

Peacock, who appeared in support of the demurrers, having argued against the sufficiency of the pleas,—

Byles, for the defendant, objected that the declaration was bad in substance. This is an action brought, not against Atkinson and his co-contractors, who were the employers of the plaintiff, but against the person employed by the Postmaster-General, and totally unconnected with them or with the plaintiff. Now it is a general rule, that wherever a wrong arises merely out of the breach of a contract, which is the case on the face of this declaration, whether the form in which the action is conceived be ex contractu or ex delicto, the party who made the contract alone can sue: Tollit v. Sherstone, 5 M. & W. 283. If the rule were otherwise, and privity of contract were not requisite, there would be no limit to such actions. If the plaintiff may, as in this case, run through the length of three contracts, he may run through any number or series of them; and the most alarming consequences would follow the adoption of such a principle. Levy v. Langridge, 4 M. & W. 337, will probably be referred to on the other side. But that case was expressly decided on the ground that the defendant, who sold the gun by which the plaintiff was injured, although he did not personally contract with the plaintiff, who was a minor, knew that it was bought to be used by him. Here there is no allegation that the defendant knew that the coach was to be driven by the 230plaintiff. There, moreover, fraud was alleged in the declaration, and found by the jury: and there, too, the cause of injury was a weapon of a dangerous nature, and the defendant was alleged to have had notice of the defect in its construction. Nothing of that sort appears upon this declaration.

Peacock, contra. This case is within the principle of the decision in Levy v. Langridge. Here the defendant entered into a contract with a public officer to supply an article which, if imperfectly constructed, was necessarily dangerous, and which, from its nature and the use for which it was destined, was necessarily to be driven by a coachman. That is sufficient to bring the case within the rule established by Levy v. Langridge. In that case the contract made by the father of the plaintiff with the defendant was made on behalf of himself and his family generally, and there was nothing to show that the defendant was aware even of the existence of the particular son who was injured. Suppose a party made a contract with government for a supply of muskets, one of which, from its misconstruction, burst and injured a soldier: there it is clear that the use of the weapon by a soldier would have been contemplated, although not by the particular individual who received the injury, and could it be said, since the decision in Levy v. Langridge, that he could not maintain an action against the contractor? So, if a coachmaker, employed to put on the wheels of a carriage, did it so negligently that one of them flew off, and a child of the owner were thereby injured, the damage being the natural and immediate consequence of his negligence, he would surely be responsible. So, if a party entered into a contract to repair a church, a workhouse, or other public building, and did it so insufficiently that a person attending the former, or a pauper in the latter, were injured by the falling of a stone, he could not maintain an action against any other person than the contractor; but against him he must surely have a remedy. It is like the case of a contractor who negligently leaves open a sewer, whereby a person passing along the street is injured. It is clear that no action could be maintained against the Postmaster-General: Hall v. Smith, 2 Bing. 156; Humphreys v. Mears, 1 Man. & R. 187; Priestly v. Fowler. But here the declaration alleges the accident to have happened through the defendant’s negligence and want of care. The plaintiff had no opportunity of seeing that the carriage was sound and secure. [Alderson, B. The decision in Levy v. Langridge proceeds upon the ground of the knowledge and fraud of the defendant.] Here also there was fraud: the defendant represented the coach to be in a proper state for use, and whether he represented that which was false within his knowledge, or a fact as true which he did not know to be so, it was equally a fraud in point of law, for which he is responsible.

Lord Abinger, C. B. I am clearly of opinion that the defendant is entitled to our judgment. We ought not to permit a doubt to rest 231upon this subject, for our doing so might be the means of letting in upon us an infinity of actions. This is an action of the first impression, and it has been brought in spite of the precautions which were taken, in the judgment of this Court in the case of Levy v. Langridge, to obviate any notion that such an action could be maintained. We ought not to attempt to extend the principle of that decision, which, although it has been cited in support of this action, wholly fails as an authority in its favor; for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and substantially the party contracting. Here the action is brought simply because the defendant was a contractor with a third person; and it is contended that thereupon he became liable to everybody who might use the carriage. If there had been any ground for such an action, there certainly would have been some precedent of it; but with the exception of actions against innkeepers, and some few other persons, no case of a similar nature has occurred in practice. That is a strong circumstance, and is of itself a great authority against its maintenance. It is however contended, that this contract being made on the behalf of the public by the Postmaster-General, no action could be maintained against him, and therefore the plaintiff must have a remedy against the defendant. But that is by no means a necessary consequence,—he may be remediless altogether. There is no privity of contract between these parties; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. Where a party becomes responsible to the public, by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent. So, in cases of public nuisances, whether the act was done by the party as a servant, or in any other capacity, you are liable to an action at the suit of any person who suffers. Those, however, are cases where the real ground of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases in which the law permits a contract to be turned into a tort; but unless there has been some public duty undertaken, or public nuisance committed, they are all cases in which an action might have been maintained upon the contract. Thus, a carrier may be sued either in assumpsit or case; but there is no instance in which a party, who was not privy to the contract entered into with him, can maintain any such action. The plaintiff in this case could not have brought an action on the contract; if he could have done so, what would have been his situation supposing the Postmaster-General had released the defendant? That would, at all events, have defeated his claim altogether. By permitting 232this action, we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him.

Alderson, B. I am of the same opinion. The contract in this case was made with the Postmaster-General alone; and the case is just the same as if he had come to the defendant and ordered a carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, there is no reason why we should not go fifty. The only real argument in favor of the action is, that this is a case of hardship; but that might have been obviated, if the plaintiff had made himself a party to the contract. Then it is urged that it falls within the principle of the case of Levy v. Langridge. But the principle of that case was simply this, that the father having bought the gun for the very purpose of being used by the plaintiff, the defendant made representations by which he was induced to use it. There, a distinct fraud was committed on the plaintiff; the falsehood of the representation was also alleged to have been within the knowledge of the defendant who made it, and he was properly held liable for the consequences. How are the facts of that case applicable to those of the present? Where is the allegation of misrepresentation or fraud in this declaration? It shows nothing of the kind. Our judgment must therefore be for the defendant.

Gurney, B., concurred.

Rolfe, B. The breach of the defendant’s duty, stated in this declaration, is his omission to keep the carriage in a safe condition; and when we examine the mode in which that duty is alleged to have arisen, we find a statement that the defendant took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach, and, during all the time aforesaid, it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition. The duty, therefore, is shown to have arisen solely from the contract; and the fallacy consists in the use of that word “duty.” If a duty to the Postmaster-General be meant, that is true; but if a duty to the plaintiff be intended (and in that sense the word is evidently used), there was none. This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but, by 233that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law.

Judgment for the defendant.^[170]

BLOOD BALM COMPANY v. COOPER Supreme Court, Georgia, October 14, 1889. Reported in 83 Georgia Reports, 857.

Action by Cooper against Blood Balm Company in the City Court of Atlanta. Verdict for plaintiff. Defendants brought error.^[171]

Blandford, J. The main question in this case arises upon the refusal of the Court below to award a nonsuit, and the solution of this question depends upon whether, where one prepares what is known as a proprietary or patent medicine, and puts it upon the market and recommends it to the world as useful for the cure of certain diseases, the bottle containing it having therewith a prescription made by the proprietor of the medicine, in which he states that it is to be taken in certain quantities, and such medicine, accompanied with this prescription, is sold by the proprietor to a druggist for the purpose of being resold to persons who might wish to use it, and the druggist sells the same to a person who uses it in the quantity thus prescribed, and it being shown that the same contains a certain article known as the iodide of potash in such quantity as proves harmful to the person thus using, the proprietor is liable. The plaintiff in error insists that there is no liability on the part of the proprietor, (1) because it was not sold by the proprietor to the person injured, but by a druggist who had purchased the same from the proprietor; and several cases are cited to sustain this position; (2) because the drug thus sold was not imminently hurtful or poisonous.

1. We are not aware of any decision of this Court upon this question, indeed there is none; and we have searched carefully not only the authorities cited by counsel in this case, but others, and we find no question like the one which arises in this record determined by any Court. In the case of Thomas v. Winchester, 6 N. Y. (2 Seld.) 397, 57 Am. Dec. 455, 1 Thompson, Neg. 224, referred to by counsel in this case, the question decided was, that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine, and sends it so labelled into market, is liable to all persons who, without fault on their part, are injured by using it as such medicine in consequence of the false label. This comes nearer the present case 234than any we have been able to find, and it is relied upon by both parties as an authority; and in the notes thereto by Mr. Freeman in the American Decisions, the cases relied upon by counsel in this case are embraced and referred to, and to some extent considered. It is not denied by counsel in this case that the doctrine of the case cited (Thomas v. Winchester) is sound and correct law, but the present case differs from that case, and mainly in this: there the drug sold was a deadly poison, and the wrong consisted in putting a label upon the same which indicated that it was a harmless medicine; whereas in this case the medicine sold was not a deadly poison, and no label was put upon it which was calculated to deceive any one in this respect. But accompanying this medicine was a prescription of the proprietor stating the quantity to be taken, and the evidence tended to show that the quantity thus prescribed contained iodide of potash to such an extent as, when taken by the plaintiff, produced the injury and damage complained of. The liability of the plaintiff in error to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and direction as to the dose that should be taken.

We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor, or by an intermediate party to whom the proprietors had sold it in the first instance for the purpose of being sold again. It was put upon the market by the proprietor, not alone for the use of druggists to whom they might sell it, but to be used by the public in general who might need the same for the cure of certain diseases for which the proprietor set forth in his label the same was adapted. This was the same thing as if the proprietor himself had sold this medicine to the defendant in error, with his instructions and directions as to how the same should be taken. In all the cases cited by the plaintiff in error there is no case in which the proprietor prescribed the doses and quantities to be taken of the medicine sold by him. If this medicine contained the iodide of potassium in sufficient quantity to produce the injurious consequences complained of to the defendant in error, and if the same was administered to him, either by himself or any other person, as prescribed in the label accompanying the medicine, he could, in our judgment, recover for any injury he may have sustained on account of the poisonous effect thereof. It was a wrong on the part of the proprietor to extend to the public generally an invitation to take the medicine in quantities sufficient to injure and damage persons who might take it.

A medicine which is known to the public as being dangerous and poisonous if taken in large quantities, may be sold by the proprietor to druggists and others, and if any person, without more, should purchase and take the same so as to cause injury to himself, the proprietor would not be liable. But if the contents of a medicine are concealed from the public generally, and the medicine is prepared by 235one who know its contents, and he sells the same, recommending it for certain diseases and prescribing the mode in which it shall be taken, and injury is thereby sustained by the person taking the same, the proprietor would be liable for the damage thus sustained. These proprietary or patent medicines are secret, or intended by the proprietors to be secret, as to their contents. They expect to derive a profit from such secrecy. They are therefore liable for all injuries sustained by any one who takes their medicine in such quantities as may be prescribed by them. There is no way for a person who uses the medicine to ascertain what its contents are, ordinarily, and in this case the contents were only ascertained after an analysis made by a chemist,—which would be very inconvenient and expensive to the public; nor would it be the duty of a person using the medicine to ascertain what poisonous drugs it may contain. He has a right to rely upon the statement and recommendation of the proprietor, printed and published to the world; and if thus relying, he takes the medicine and is injured on account of some concealed drug of which he is unaware, the proprietor is not free from fault, and is liable for the injury thereby sustained. It appears from the analysis made by the chemist in this case that this medicine contained 25 grains of the iodide of potash to two tablespoonfuls of the medicine. The testimony of the plaintiff, by witnesses learned in the profession of medicine, was that iodide of potash in this quantity would produce the effects upon a person using it shown by the condition of the defendant in error. The prescription accompanying the bottle directed the taking of one to two tablespoonfuls of the medicine, and this was done by the defendant in error, and he was thereby greatly injured and damaged.

This is not like the case of a dangerous machine or a gun sold to a person and by him given or sold to another, as in some of the cases referred to. Mr. Freeman, in his notes to the case above referred to (Thomas v. Winchester), alludes to all those cases; and Mr. Thompson, in his work on Negligence, refers to the same cases, and they are there fully discussed.

Judgment affirmed.

[Remainder of opinion omitted.]

HUSET v. J. I. CASE THRESHING MACHINE CO. Circuit Court of Appeals, Eighth Circuit, February 26, 1903. Reported in 120 Federal Reporter, 865.

Sanborn, Circuit Judge:^[172]

Is a manufacturer or vendor of an article or machine which he knows, when he sells it, to be imminently dangerous, by reason of a concealed defect therein, to the life and limbs of any one who shall use 236it for the purpose for which it was made and intended, liable to a stranger to the contract of sale for an injury which he sustains from the concealed defect while he is lawfully applying the article or machine to its intended use?

The argument of this question has traversed the whole field in which the liability of contractors, manufacturers, and vendors to strangers to their contracts for negligence in the construction or sale of their articles has been contested. The decisions which have been cited are not entirely harmonious, and it is impossible to reconcile all of them with any established rule of law. And yet the underlying principle of the law of negligence, that it is the duty of every one to so act himself and to so use his property as to do no unnecessary damage to his neighbors, leads us fairly through the maze. With this fundamental principle in mind, if we contemplate the familiar rules that every one is liable for the natural and probable effects of his acts; that negligence is a breach of a duty; that an injury that is the natural and probable consequence of an act of negligence is actionable, while one that could not have been foreseen or reasonably anticipated as the probable effect of such an act is not actionable, because the act of negligence in such a case is the remote, and not the proximate, cause of the injury; and that, for the same reason, an injury is not actionable which would not have resulted from an act of negligence except from the interposition of an independent cause (Chicago, St. Paul, Minneapolis & Omaha R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582)—nearly all the decisions upon this subject range themselves along symmetrical lines, and establish rational rules of the law of negligence consistent with the basic principles upon which it rests.

Actions for negligence are for breaches of duty. Actions on contracts are for breaches of agreements. Hence the limits of liability for negligence are not the limits of liability for breaches of contracts, and actions for negligence often accrue where actions upon contracts do not arise, and vice versa. It is a rational and fair deduction from the rules to which brief reference has been made that one who makes or sells a machine, a building, a tool, or an article of merchandise designed and fitted for a specific use is liable to the person who, in the natural course of events, uses it for the purpose for which it was made or sold, for an injury which is the natural and probable consequence of sale. But when a contractor builds a house or a bridge, or a manufacturer constructs a car or a carriage, for the owner thereof under a special contract with him, an injury to any other person than the owner for whom the article is built and to whom it is delivered cannot ordinarily be foreseen or reasonably anticipated as the probable result of the negligence in its construction. So, when a manufacturer sells articles to the wholesale or retail dealers, or to those who are to use them, injury to third persons is not generally the natural or probable 237effect of negligence in their manufacture, because (1) such a result cannot ordinarily be reasonably anticipated, and because (2) an independent cause—the responsible human agency of the purchaser—without which the injury to the third person would not occur, intervenes, and, as Wharton says, “insulates” the negligence of the manufacturer from the injury to the third person. Wharton on Law of Negligence (2d ed.) § 134. For the reason that in the cases of the character which have been mentioned the natural and probable effect of the negligence of the contractor or manufacturer will generally be limited to the party for whom the article is constructed, or to whom it is sold, and, perhaps more than all this, for the reason that a wise and conservative public policy has impressed the courts with the view that there must be a fixed and definite limitation to the liability of manufacturers and vendors for negligence in the construction and sale of complicated machines and structures which are to be operated or used by the intelligent and the ignorant, the skilful and the incompetent, the watchful and the careless, parties that cannot be known to the manufacturers or vendors, and who use the articles all over the country hundreds of miles distant from the place of their manufacture or original sale, a general rule has been adopted and has become established by repeated decisions of the courts of England and of this country that in these cases the liability of the contractor or manufacturer for negligence in the construction or sale of the articles which he makes or vends is limited to the persons to whom he is liable under his contracts of construction or sale. The limits of the liability for negligence and for breaches of contract in cases of this character are held to be identical. The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. Winterbottom v. Wright, 10 M. & W. 109; Longmeid v. Holliday, 6 Exch. 764, 765; Blakemore v. Ry. Co., 8 El. & Bl. 1035; Collis v. Selden, L. R. 3 C. P. 495, 497; Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621; Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; Goodlander v. Standard Oil Co., 63 Fed. 400, 406, 11 C. C. A. 253, 259, 27 L. R. A. 583; Loop v. Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 623; Curtain v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; Burke v. De Castro, 11 Hun, 354; Swan v. Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; Barrett v. Mfg. Co., 31 N. Y. Super. Ct. 545; Carter v. Harden, 78 Me. 528, 7 Atl. 392; McCaffrey v. Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; Marvin Safe Co. v. Ward, 46 N. J. Law, 19; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; 238Davidson v. Nichols, 11 Allen, 514; J. I. Case Plow Works v. Niles & Scott Co., (Wis.) 63 N. W. 1013.

In these cases third parties, without any fault on their part, were injured by the negligence of the manufacturer, vendor, or furnisher of the following articles, while the parties thus injured were innocently using them for the purposes for which they were made or furnished, and the courts held that there could be no recovery, because the makers, vendors, or furnishers owed no duty to strangers to their contracts of construction, sale, or furnishing. A stage-coach, Winterbottom v. Wright, 10 M. & W. 109; a leaky lamp, Longmeid v. Holliday, 6 Exch. 764, 765; a defective chain furnished one to lead stone, Blakemore v. Ry Co., 8 El. & Bl. 1035; an improperly hung chandelier, Collis v. Selden, L. R. 3 C. P. 495, 497; an attorney’s certificate of title, Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621; a defective valve in an oil car, Goodlander v. Standard Oil Co., 63 Fed. 401, 406, 11 C. C. A. 253, 259, 27 L. R. A. 583; a porch on a hotel, Curtain v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; a defective side saddle, Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; a defective rim in a balance wheel, Loop v. Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a defective boiler, Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 623; a defective cylinder in a threshing machine, Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; a defective wall which fell on a pedestrian, Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; a defective rope on a derrick, Burke v. Refining Co., 11 Hun, 354; a defective shelf for a workman to stand upon in placing ice in a box, Swan v. Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; a defective hoisting rope of an elevator, Barrett v. Mfg. Co., 31 N. Y. Super. Ct. 545; a runaway horse, Carter v. Harden, 78 Me. 528, 7 Atl. 392; a defective hook holding a heavy weight in a drop press, McCaffrey v. Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; a defective bridge, Marvin Safe Co. v. Ward, 46 N. J. Law, 19; shelves in a dry goods store, whose fall injured a customer, Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; a staging erected by a contractor for the use of his employees, McGuire v. McGee, (Pa.) 13 Atl. 551; defective wheels, J. I. Case Plow Works v. Niles & Scott Co., (Wis.) 63 N. W. 1013.

In the leading case of Winterbottom v. Wright this rule is placed upon the ground of public policy, upon the ground that there would be no end of litigation if contractors and manufacturers were to be held liable to third persons for every act of negligence in the construction of the articles or machines they make after the parties to whom they have sold them have received and accepted them. In that case the defendant had made a contract with the Postmaster-General to provide and keep in repair the stage-coach used to convey the mail from Hartford to Holyhead. The coach broke down, overturned, 239and injured the driver, who sued the contractor for the injury resulting from his negligence. Lord Abinger, C. B., said:

“There is no privity of contract between these parties; and, if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

Baron Alderson said:

“I am of the same opinion. The contract in this case was made with the Postmaster-General alone; and the case is just the same as if he had come to the defendant and ordered a carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond that, there is no reason why we should not go fifty.”

The views expressed by the judges in this case have prevailed in England and in the United States, with the exception of two decisions which are in conflict with the leading case and with all the decisions to which reference has been made. Those cases are Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a contractor, to build a scaffold 90 feet in height, for the express purpose of enabling the painter’s workmen to stand upon it to paint the interior of the dome of a building, and the Court of Appeals of New York held that Stevenson was liable to a workman of Smith, the painter, who was injured by a fall, caused by the negligence of Stevenson in the construction of the scaffold upon which he was working; and Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559, in which a painter purchased of a manufacturer a stepladder, and one of the painter’s employees, who was injured by the breaking of a step caused by the negligence of the manufacturer, was permitted to recover of the latter for the injuries he had sustained. The decision in Devlin v. Smith may, perhaps, be sustained on the ground that the workmen of Smith were the real parties in interest in the contract, since Stevenson was employed and expressly agreed to construct the scaffold for their use. But the case of Schubert v. J. R. Clark Co. is in direct conflict with the side saddle case, Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; the porch case, Curtain v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; the defective cylinder case, Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; the defective hook case, McCaffrey v. Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; and with the general rule upon which all these cases stand.