Explosives and other

some such person will discharge them to the injury of himself or others.

On a like principle it is held that people sending goods dangerous of an explosive or dangerous nature to be carried are goods. 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 (). 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 (7).

(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).

(1) See Smith v. Boston Gas Light Co., 129 Mass. 318.

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).

Poisons can do as much mischief as loaded fire-arms or Poisonous explosives, though the danger and the appropriate precau- Thomas v. drugs: tions 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 practitioner, 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

(m) Parry v. Smith (1879) 4 C. P. D. 325, 48 L. J. C. P. 731

(Lopes J.). Negligence was found
as a fact.

Winchester.

Difficulties felt in

George v.
Skivington.

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.

Nevertheless difficulties are felt in England about England: 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 (9). The cause of action seems to

(n) Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602.

(0) 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.

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

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 ("). 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.

(r) Dixon v. Bell (1816) 5 M. & S. 198, Bigelow L. C. 568 (supra, p. 437), 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.

(8) 20 L. J. Ex. at p. 433.

Duties of occupiers

of buildings, &c., in respect

of safe repair.

Extent of

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.

The duty is founded not on ownership, but on possession, the duty. 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 (†). 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:

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

(1) 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.