statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed; and we are referred to the case of Atkinson v. Newcastle Water Works Co., L. R. 2 Exch. Div. 441, as authority for that proposition, qualifying as it does the broad doctrine stated by Lord Campbell in Couch v. Steel, 3 E. & B. 402. But accepting the more limited doctrine admitted in the language of Lord Cairns in the case cited, that whether such an action can be maintained must depend on the "purview of the legislature in the particular statute, and the language which they have there employed," we think the right to sue, under the circumstances of the present case, clearly within its limits. In the analogous case of fences required by the statute as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. "The nature of the duty," said Judge Cooley in Taylor v. L. S. & M. S. R. Company, 45 Mich. 74, "and the benefits to be accomplished through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit." (See, also, Railroad Company v. Terhune, 50 Ill. 151; Schmidt v. The Milwaukee & St. Paul Railway Company, 23 Wisc. 186; Siemers v. Eisen, 54 Cal. 418; Galena & Chicago Union Railroad Company v. Loomis, 13 Ill. 548; O. & M. Railroad Company v. McClelland, 25 Ill. 140; St. L. V. & T. II. Railroad Company v. Dunn, 78 Ill. 197; Massoth v. Delaware & Hudson Canal Company, 64 N. Y. 521; B. & O. Railroad Company v. State, 29 Md. 252; Pollock v. Eastern Railroad Company, 124 Mass. 158; Cooley on Torts, 657.)

It is said, however, that, in the present case, the failure or omission to construct a fence or wall cannot be alleged as negligence against the company, because, as the structure was to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common council might direct, no duty could arise until after the council had directed the character of the work to be constructed, of which no proof was offered. But the obligation of the company was not conditioned on any previous directions to be given by the city council. It was absolute, to build a suitable wall, fence or other sufficient work as would prevent animals from straying upon the tracks and secure persons and property from danger. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company. (Tallman v. Syracuse, Binghamton & N. Y. Railroad Company, 4 Keyes, 128; Brooklyn v. Brooklyn City Railroad Company, 47 N. Y. 475.)

It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection.

The question is, was it causa sine qua non, a cause which if it had not existed, the injury would not have taken place, an occasional cause? and that is a question of fact, unless the causal connection is evidently not proximate. (Milwaukee & St. Paul Railroad Company v. Kellogg, 94 U. S. 469.) The rule laid down by Willes, J., in Daniel v. Metropolitan Railway Company, L. R. 3 C. P. 216, 222, and approved by the Exchequer Chamber, L. R. 3 C. P. 591, and by the House of Lords, L. R. 5 H. L. 45, was this: "It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to;" and in the case of Williams v. Great Western Railway Company,

L. R. 9 Excheq. 157, where the rule was applied to a case similar to the present, it was said (p. 162): "There are many supposable circumstances under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about and he had met with a stile, he would probably have been turned back; and one at least of the objects for which a gate or stile is required, is to warn people of what is before them and to make them pause before reaching a dangerous place like a railroad.”

The evidence of the circumstances showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Company v. Stout, 17 Wall. 657, and Randall v. B. &0. Railroad Company, 109 U. S. 478, should have been submitted to the jury; and for the error of the Circuit Court in directing a verdict for the defendant,

The judgment is reversed and a new trial awarded.1

じ

ASSUMPTION OF SKILL.

BISHOP V. WEBER.

(139 Mass. 411. - 1885.)

The declaration as

TORT. Writ dated October 29, 1883. originally filled contained two counts. On May 19, 1884, a demurrer to the declaration was sustained, and no exception or appeal was taken. At the same term, the declaration was amended by adding a third count, and by inserting certain words in the first and second count. The plaintiff had also leave to amend her writ by adding after the word "tort" the words "or contract, the plaintiff being doubtful to which class of actions this action belongs."

The Superior Court sustained the demurrer and ordered judgment for the defendant; and the plaintiff appealed to this court.

1 Milnes v. Mayor & Co., Huddersfield, 11 App. Cas. 511; Knight v. N. Y. L. E. & W. Ry. Co., 99 N. Y. 25.

J. D. Bryant for the defendant.

B. C. Moulton for the plaintiff.

C. ALLEN, J. If one who holds himself out to the public as a caterer, skilled in providing and preparing food for entertainments, is employed as such, by those who arrange for an entertainment, to furnish food and drink for all who may attend it, and if he undertakes to perform the service accordingly, he stands in such a relation of duty towards a person who lawfully attends the entertainment, and partakes of the food furnished by him, as to be liable to an action of tort for negligence in furnishing unwholesome food, whereby such person is injured. This liability does not rest so much upon an implied contract, as upon a violated or neglected duty volun tarily assumed. Indeed, where the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter may have a right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of contract between the parties. (Norton v. Sewall, 106 Mass. 143; Longmeid v. Holliday, 6 Exch. 761; Pippin v. Sheppard, 11 Price, 400.)

The plaintiff's action was originally entitled "in an action of tort." The plaintiff obtained leave to amend by adding the words "or contract, the plaintiff being doubtful to which class of actions this action belongs." This amendment was unnecessary, and may be disregarded, all the amended counts upon which the plaintiff relies being in tort. It is not necessary to sustain the demurrer on account of this lack of literal precision in entitling the action.

The defendant relies on several other extremely fine points of objection, but, without dwelling on them in detail, it may be said, in general terms, that the several counts sufficiently

set forth the facts from which the duty of the defendant towards the plaintiff sprung, and it is not necessary to state formally and in terms that the defendant occupied such a relation towards the plaintiff that the law cast upon him the duty; they also sufficiently aver that the defendant neglected that duty, and that the plaintiff was injured by reason thereof. It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that he ought to have known of it, and was negligent in fur nishing unwholesome food, by reason whereof the plaintiff. was injured.

Judgment reversed.

MILWAUKEE & C. RY. Co. v. KELLOGG.

(94 U. S. 469.-1876.)

ERROR to the Circuit Court of the United States for the District of Iowa.

The facts are stated in the opinion of the court.

Mr. John W. Cary for the plaintiff in error.

Mr. Myron H. Beach contra.

MR. JUSTICE STRONG delivered the opinion of the court.

This was an action to recover compensation for the destruction by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. From the bill of exceptions, it appears that the "plaintiff alleged the fire was negligently communicated from the defendants' steamboat Jennie Brown' to an elevator built of pine lumber, and one hundred and twenty feet high, owned by the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's saw-mill