Limits of In the various applications we have mentioned, the duty the duty. does not extend to defects incapable of being discovered Tolentinon fit iniuria. by the exercise of reasonable care, such as latent flaws in metal (p); though it does extend to all such as care and skill (not merely care and skill on the part of the defendant) can guard against (9). Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems), unless he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care (r). Liability under the rule in Indermaur v. Dames (s) may be avoided not only by showing contributory negligence in the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it (t); but this will not excuse the breach of a positive statutory duty (u). (p) Readhead v. Midland R. Co. (1869) Ex. Ch. L. R. 4 Q. B. 379; a case of contract between carrier and passenger, but the principle is the same, and indeed the duty may be put on either ground, see Hyman v. Nye (1881) 6 Q. B. D. 685, 689, per Lindley J. This does not however qualify the law as to the seller's implied warranty on the sale of a chattel for a specific purpose; there the warranty is absolute that the chattel is reasonably fit for that purpose, and there is no exception of latent defects: Randall v. Newson (1877) 2 Q. B. Div. 102, 46 L. J. Q. B. 257. (r) Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden (1868) L. R. 3 C. P. 495, 37 L. J. C. P. 233; Losee v. Clute, 51 N. Y. 494. (s) P. 443, above. (t) Thomas v. Quartermaine, 18 Q. B. Div. 685, 56 L. J. Q. B. 340. (u) Dicta of L. JJ. ibid., and Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501. See further Yarmouth v. France, ib. 647, and p. 150, above. towards Occupiers of fixed property are under a like duty Duty towards persons passing or being on adjacent land by passerstheir invitation in the sense above mentioned, or in the by. exercise of an independent right. In Barnes v. Ward (x), the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Campbell's Act, and the case was twice argued; the main point. for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excavation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance "even though the danger consists in the risk of accidentally deviating from the road." Lately it has been held that one who by lawful authority diverts a public path is bound to provide reasonable means to warn and protect travellers against going astray at the point of diversion (y). In Corby v. Hill (≈) the plaintiff was a person using a private way with the consent of the owners and occupiers. The defendant had the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff's horse, (x) 9 C. B. 392, 19 L. J. C. P. 195 (1850); cp. D. 9. 2, ad leg. Aquil. 28. (y) Hurst v. Taylor (1885) 14 Q. B. D. 918, 54 L. J. Q. B. 310; defendants, railway contractors, had (within the statutory powers) diverted a footpath to make the P. line, but did not fence off the old (z) 4 C. B. N. S. 556, 27 L. J. GG Presump tion of being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the owners or not. If not, he was a mere trespasser; but the owners themselves could not have justified putting a concealed and dangerous obstruction in the way of persons to whom they had held out the road as a means of access (a). Here the plaintiff was (it seems) (b) only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee's condition is better than a trespasser's. Where damage is done by the falling of objects into negligence a highway from a building, the modern rule is that the (res ipsa loquitur). accident, in the absence of explanation, is of itself evidence of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable. The authorities, though not numerous, are sufficient to establish the rule, one of them being the decision of a Court of Appeal. In Byrne v. Boadle (c) a barrel of flour fell from a window in the defendant's warehouse in Liverpool, and knocked down the plaintiff, who was lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise against (a) Cp. Sweeny v. Old Colony & Newport R. R. Co. (1865) 10 Allen (Mass.) 368, and Bigelow L. C. 660. (b) The language of the judgments leaves it not quite clear whether the continued permission to use the road for access to a public building (the Hanwell Lunatic Asylum) did not amount to an "invitation" in the special sense of this class of cases. (c) 2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C. 578 (1863). the defendant a presumption of negligence which it was for him to rebut. "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. . . . A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence" (d). This was followed, perhaps extended, in Kearney v. London, Brighton and South Coast Railway Co. (e). There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, except that after the accident other bricks were found to have fallen out. The Court held the maxim "res ipsa loquitur" to be applicable. "The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it ;" and when "a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train," it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair (f). This decision has been followed, in the stronger case of a whole building falling into the (d) Per Pollock C. B. Cp. Scott v. London Dock Co. (1865) 3 H. & C. 596, 34 L. J. Ex. 220, p. 384, above. (e) Ex. Ch. L. R. 6 Q. B. 759, 40 L. J. Q. B. 285 (1871). (f) Per Cur. L. R. 6 Q. B. at pp. 761, 762. Distinctions. street, in the State of New York. Buildings properly constructed do not fall without adequate cause " (g). In a later case () the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair: the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. "It was the defendant's duty to make the lamp reasonably safe, the contractor failed to do that. therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences" (i). In this case negligence on the contractor's part was found as a fact. Combining the principles affirmed in these authorities, we see that the owner of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against. But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier's control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable (4). In other words, he does not answer for the care or skill of an independent and apparently com (g) Mullen v. St. John, 57 N. Y. 567, 569. (h) Tarry v. Ashton (1876) 1 Q. (i) Per Blackburn J. at p. 319. R. Co. (1869) L. R. 4 Q. B. 693, 38 L. J. Q. B. 241; a decision on peculiar facts, where perhaps a very little more evidence might have turned the scale in favour of the plaintiff. |