[reposted February 1, 1998]
[Original pagination shown in bold brackets.]
[begins at page 470:]
Statement of case.
An employer does not undertake, absolutely, with his employes for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care; and when injury to an employe results from a defect in the implements, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it.
Defendant, J. T. S., a painter, contracted to paint the inside of the dome of a court-house. Having no experience in building scaffolds, or knowledge of that business he made a contract with defendant J. S., an experienced scaffold-builder, to erect the necessary scaffolding, which was to be first-class. Through the negligence of J. S., the scaffold was defectively constructed, and, in consequence, while D., plaintiff's intestate, who was in the employ of J. T. S., was at work upon the scaffold, it gave way, and D. received injuries causing his death. In an action to recover damages, it did not appear that J. T. S. knew, or had reason to know, of any defect in the scaffold; that J. S. was not the agent, or servant, of J. T. S., but an independent contractor, for whose acts, or omissions, the latter was not liable; that it was not negligence for him to rely upon the judgment of J. S. as to the sufficiency of the scaffold, and the propriety of the mode of construction and that, therefore, J. T. S. was not liable. But held (Earl, J., dissenting) that J. S. was liable, as, although there was no privity of contract between him and D., he had contracted to build a structure for the workmen of J. T. S., any defect wherein, which would cause it to give way, would naturally result in injury to said workmen, and he owed them a duty to use proper diligence, independent of his contract.Mayor v. Cunliff (2 N Y, 165), Loop v. Litchfield (42 id. 351), Losee v. Clute, (51 id. 494), distinguished
Devlin v. Smith (25 Hun, 206), reversed in part.
(Argued February 10, 1882; decided October 10, 1882.)
APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 12, 1881, which affirmed a judgment entered upon an order dismissing plaintiff's complaint on trial. (Reported below, 25 Hun, 206.)
This action was brought to recover damages for alleged negligence, causing the death of Hugh Devlin, plaintiff's intestate.
Defendant Smith entered into a contract with the supervisors of the county of Kings, by which he agreed to paint the inside of the dome of the courthouse in that county. [p. 471:]
Smith was not a scaffold-builder, and knew nothing of that business. He entered into a contract with defendant Stephenson who was an experienced scaffold-builder, and had been previously employed by Smith, to build the necessary scaffold. This was to be of the best materials, and first class in every way. Stevenson built the scaffold of poles, in sections. To the poles used for uprights, horizontal poles were lashed with ropes; these were called ledgers. Upon these ledgers, plank were placed, and upon the top of each section so constructed, was placed another similarly constructed. When the scaffolding reached the curve of the dome, it was necessary to lessen the width of the upper section. For this purpose a strip of plank was used as an upright to support the end of the shorter ledger. This upright was called a cripple; but instead of fastening the ledger to it by lashing it was fastened by nailing. The scaffold was ninety feet in height.
Devlin was a workman in Smith's employ. He was working on the curve of the dome, and sitting on a plank laid upon a ledger which was nailed to an upright or cripple, as above described, when the ledger gave way and broke. He was precipitated to the floor below, and so injured that he died soon after.
Thomas E. Pearsall for appellant. It was the duty of the defendant Smith to, furnish for the use of his servants proper, suitable, safe and sufficient machinery, means and appliances, and keep them in safe and suitable condition. (Corcoran v. Holbrook, 59 N. Y. 517; Laning v. New York Cent. R. R. (49 id. 532; Booth v. B. & A. R. R., 73 id. 38; Wright v., New York Cent. R. R, 25 id. 562, Flike v. B. & A. R. R., 53 id. 549, 553; Cone v. D. & L. W. R. R., 81 id. 206, 208; Brickner v. New York Cent. R. R., 2 Lans. 506; affirmed 49 N. Y. 672; Kain v. Smith, 80 id. 468; Crispin v. Babbitt, 81 id. 521; Fuller v. Jewett, 80 id. 46, 51.) It is not necessary to show that the defendant Smith had actual knowledge or notice of the defect in the scaffold. It is sufficient that he ought to have known, or could, by the exercise of reasonable care, have ascertained, its defective condition. (Wright v. [p. 472:] N. Y. C. R. R., 25 N. Y. 562-566; Brickner v. N. Y. C. R. R., 2 Lans. 506-513; affirmed, 49 N. Y. 672; Fuller v. Jewett, 80 id. 46; Booth v. B. & R. R., 73 id. 38; Flike v. N. Y. C. R., 53 id. 549; Spelman v. Fisher Iron, Co., 56 Barb. 151, 165; Connolly v. Poillon, 41 id. 366; affirmed, 41 N. Y. 619; Ryan v. Fowler, 24 id. 410, 414; Gibson v. Pacific R. R., 2 Am. Rep. 497, 503; Noyes v. Smith, 28 Vt. 59; Chicago, etc., R. R. v. Platt, 89 Ill. 141; Wedgewood v. C. & N. Y. W. R. R., 44 Wis. 2; Holmes v. Clark, 10 W. R. 405.) The defendant Stevenson was liable on this ground of a neglect or disregard of a public duty or obligation. (Thomas v. Winchester, 6 N. Y. 396; Cook v. N. Y. Floatinq Dock Co., 1 Hilt. 436; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Godley v. Haggerty, 20 Penn. St. 387; Fort v. Whipple, 11 Hun, 586.) It is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends on conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men. (Payne v. T. & B. R. R., 83 N. Y. 574; Wolfkiel v. Sixth Ave. R. R., 38 id. 49; Weber v. N. Y. C. R. R., 58 id. 451; Hart v. H. R. Bridge Co., 80 id. 622; Colt v. Sixth Ave. R. R., 49 id. 671; Painton v. N. C. R. R., 83 id. 7-14; Fort v. Whipple, 11 Hun, 586-590, 591-593.) The question of contributory negligence on the part of the deceased was a question of fact for the jury. (Weber v. N. Y. C. R. R., 58 N. Y. 451; Thurber v. Harlem R. R., 60 id. 330, 331; Hawley v. N. C. R. R., 82 id. 370; Belton v. Baxter, 58 id. 411.) The deceased had the right to assume that the defendant Smith exercised due care and diligence in providing the scaffold, and that it was a safe and suitable structure to work upon. (Connolly v. Poillon, 41 Barb. 366-369; affirmed, 41 N. Y. 619; Noyes v. Smith, 28 Vt. 59; 24 N. Y. 414; Jetter v. N. Y. & H. R. R., 2 Abb. Ct. App. Dec. 458, 461; Ford v. Fitchburg R. R., 14 Am. Rep. 606; Gibson v. Pacific R. R., 2 id. 500; Fort Wayne R. R. v. Gildersleeve, 33 Mich. 133; Toledo R. R. [p. 473:] Co. v. Ingraham, 77 Ill. 309; Laning v. N. Y. C. R. R., 49 N. Y. 521, 531.)Winchester Britton for respondents. It is the duty of the plaintiff to prove, and the right of the defendant, who is charged with negligence causing an injury, that he should prove by satisfactory evidence, that he did not contribute to the injury by any negligence on his own part. (Warner v. N. Y. C., 44 N. Y. 46 5; Cordell v. Central Road, 75 id. 332.) As plaintiff knew the perils of the service and consented to continue in it, he has no claim upon his employer with respect to injuries resulting from these perils. (Wright v. Central Road, 25 N. Y. 652-70; Owen v. Central Road, 1 Lans. 108; Haskins v. N. Y. C. & H. R. R. Co., 65 Barb. 129.) If the risks were open and visible, he was bound to take notice of them. (Wood's Master and Servant, [[section]] 326; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Priestly v. Fowler, 3 M. & W. 1; Potts v. Plunkett, 9 Jur. C. L. 290; Ogden v. Summers, 3 Cl. & F. 751; Riceman v. Havemeyer, 84 N. Y. 647; Buzzel v. Laconia Mfg. Co., 48 Me. 113; Loonon v. Brockway, 3 Robt. 74.) So far as the defendant Smith concerned, assuming the accident to have been due to the fact that the upright was nailed instead of being lashed, the case fails to show that he "omitted a duty which makes him responsible to the plaintiff." (Henry v. S. I. R. R. Co., 81 N. Y. 373; De Graff v. N. Y. C. R. R. Co., 76 id. 125; Fuller v. Jewett, 80 id. 46; Coughtry v. Woolen Co., 56 id. 124.) He was bound to exercise an ordinary and reasonable degree of care and diligence in furnishing a scaffold for his men to work on. (Bissell v. N. Y. & H. R. R. Co., 70 N. Y. 171; Md. R. R. Co. v. Barber, 5 Ohio St. 541; Gibson v. R. R. Co., 2 Am. Rep. 497; Hard v. R. R. Co., 32 Vt. 473.) There was no privity between Stephenson and Smith's employee; he owed them no duty, and he cannot be held liable for any accident happening after he had finished the scaffold and Smith had assumed control of it. (Losee v. Clute, 51, N. Y. 494; Loop v. Litchfield, 42 id. 351; Coughtry v. Globe Woolen Co., [p. 474:] 56 id. 124; Longmeid v. Holliday, 6 Eng. Law & Eq. 362, Mayor v. Cunliff, 2 N. Y. 165; Burke v. De Castro, 11 Hun, 355; Thomas v. Winchester, 6 N. Y. 397.)
RAPALLO, J. Upon a careful review of all the testimony in this case, we are of opinion that there was sufficient evidence to require the submission to the jury of the question, whether the breaking down of the scaffold was attributable to negligence in its construction. It appears that the ledger which supported the plank upon which the deceased was sitting broke down without any excessive weight being put upon it, and without any apparent cause sufficient to break a well-constructed scaffold. One witness on the part of the plaintiff, accustomed to work on scaffolds and to see them built, testified that the upright which supported the end of the ledger should have been fastened to it by lashing with ropes, instead of by nailing, and that lashing would have made it stronger, giving as reasons for this opinion, that the springing of the planks when walked upon was liable to break nails or push them out, whereas lashings would only become tighter; and the witness testified that the kind of scaffold in question was generally fastened by lashing, and that it was not the proper way to support the end of the ledger which broke, with an upright nailed to the ledger, and that the ledger in question was fastened by nailing.
Another, a carpenter and builder, testified, that when, on account of the curving of the dome, it became necessary to put in a cripple, the cripple as well as the main uprights should be tied to the ledgers with rope; that the springing of the scaffold will break nails.
The appearances after the breakage were described to the jury, and a model of the scaffold was exhibited to them. Testimony touching the same points was submitted on the part of the defendants and we think that on the whole evidence it was a question of fact for the jury and not of law for the court whether or not the injury was the result of the negligent construction of the scaffold.
The question of contributory negligence on the part of the deceased was also one for the jury. They had before them the [p. 475:] circumstances of the accident. It appeared that the deceased was sitting on a plank, performing the work for which the scaffold had been erected. He was washing the interior wall of the dome, preparatory to its being painted. There nothing to indicate that he was in an improper place or that he unnecessarily exposed himself to danger, or did any act to contribute to the accident. It is suggested that he, or some one of his fellow-servants, may have kicked against the upright or brace which supported the end of the ledger, and thus thrown it out of place, but there was no evidence which would entitle the court to assume that the accident occurred from any such cause. The case was, therefore, one in which the jury might have found from the evidence that the death was caused by the improper or negligent construction of the scaffold, and without any fault on the part of the deceased and the remaining question is whether, if those facts should be found, the defendants, or either of them, should be held liable in this action.
The defendant Smith claims that no negligence on his part was shown. He was a painter who had made a contract with the supervisors of Kings county to paint the interior of the dome of the county courthouse, and the deceased was a workman employed by him upon that work. As between Smith and the county, he was bound to furnish the necessary scaffolding; but he was not a scaffold-builder, nor had he any knowledge of the business of building scaffolds, or any experience therein. He did not undertake to build the scaffold in question himself, or by means of servants or workmen under his direction, but made a contract with the defendant Stevenson to erect the structure for a gross sum, and the work was done under that contract, by Stevenson, who employed his own workmen and superintended the job himself. Mr. Stevenson had been known to Smith as a scaffold-builder since 1814. His experience had been very large and Smith had employed him before, and on this occasion the contract with him was for a first-class scaffold. There is no evidence upon which to base any allegation of incompetency on the part of Stevenson, nor any charge of negligence on the part of Smith in selecting him as contractor, nor [p. 476:] is there any evidence that Smith knew, or had reason to know, of any defect in the scaffold.
An employer does not undertake absolutely with his employes for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care in that respect, and where injury to an employe results from a defect in the implements furnished, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Personal negligence is the gist of the action. (Wright v. New York Central R. R. Co., 25 N. Y. 566; Warner v. Erie Railway Co., 39 id. 468, 475; Wilson v. Merry, L. R., 1. Scotch & Div. App. 326; Fuller v. Jewett, 80 N. Y. 46; 36 Am. Rep. 575.)
Under the recent decisions in this State, it may be that if Smith had undertaken to erect the scaffold through agents, or workman acting under his direction, he would have been liable for negligence on their part in doing the work, provided that in doing it they were not fellow-servants of the patty injured. But in this case he did not so undertake. Stevenson was not the agent or servant of Smith, but an independent contractor for whose acts or omissions Smith was not liable. (Blake v. Ferris. 5 N. Y. 48.) Smith received the scaffold from him as completed work, and we do not think that it was negligence to rely upon its sufficiency and permit his employes to go upon it for the purpose of performing their work. Stevenson was, as appears from the evidence, much more competent than Smith to judge of its sufficiency. He had undertaken to construct a first-class scaffold, he had delivered it to Smith in performance of this contract, and we do not think that Smith is chargeable with negligence for accepting it without further examination. All that such an examination would have disclosed would have been that the upright was nailed to the ledger, and Smith, not being an expert, would have been justified in relying upon the judgment of Stevenson as to the propriety of that mode of fastening. The defect was not such as to admonish Smith of danger. [p. 477:]
If any person was at fault in the matter it was the defendant Stevenson. It is contended, however, that even if through his negligence the scaffold was defective, he is not liable in this action because there was no privity between him and the deceased, and he owed no duty to the deceased, his obligation and duty being only to Smith, with whom he contracted.
As a general rule the builder of a structure for another party, under a contract with him, or one who sells an article of his own manufacture, is not liable to an action by a third party who uses the same with the consent of the owner or purchaser, for injuries resulting from a defect therein, caused by negligence. The liability of the builder or manufacturer for such defects is, in general, only to the person with whom be contracted. But, notwithstanding this rule, liability to third parties has been held to exist when the defect is such as to render the article in itself imminently dangerous, and serious injury to any person using it is a natural and probable consequence of its use, as where a dealer in drugs carelessly labeled a deadly poison as a harmless medicine, it was held that he was liable not merely to the person to whom be sold it, but to the person who ultimately used it, though it had passed through many hands. This liability was held to rest, not upon any contract or direct privity between him and the party injured, but upon the duty which the law imposes on every one to avoid acts in their nature dangerous to the lives of others. (Thomas v. Winchester, 6 N. Y. 397.) In that case Mayor, etc. v. Cunliff (2 N. Y. 165) was cited as an authority for the position that a builder is liable only to the party for whom he builds. Some of the examples there put by way of illustration were commented upon, and among others the case of one who builds a carriage carelessly and of defective materials, and sells it, and the purchaser lends it to a friend, and the carriage, by reason of its original defect, breaks down and the friend is injured, and the question is put, can he recover against the maker? The comments of RUGGLES, Ch. J., upon this suppositious case, in Thomas v. Winchester, and the ground upon which he answers the question in the negative, show clearly the distinction [p. 478] between the two classes of cases. He says that in the case supposed, the obligation of the maker to build faithfully arises only out of his contract with the purchaser. The public have nothing to do with it. Misfortune, to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence, and such negligence is not an act imminently dangerous to human life.
Applying these tests to the question now before us, the solution is not difficult. Stevenson undertook to build a scaffold ninety feet in height, for the express purpose of enabling the workmen of Smith to stand upon it to paint the interior of the dome. Any defect or negligence in its construction, which should cause it to give way, would naturally result in these men being precipitated from that great height. A stronger case, where misfortune to third persons not parties to the contract would be a natural and necessary consequence of the builder's negligence, can hardly be supposed, nor is it easy to imagine a more apt illustration of a case where such negligence would be an act imminently dangerous to human life. These circumstances seem to us to bring the case fairly within the principle of Thomas v. Winchester.
The same principle was recognized in Coughtry v. The Globe Woolen Co., 56 N. Y. 124, and applied to the case of a scaffold. It is true there was in that case the additional fact that the scaffold was erected by the defendant upon its own premises, but the case did not depend wholly upon that point. The scaffold was erected under a contract between the defendant and the employers of the person killed. The deceased was not a party to that contract, and the same argument was made as is urged here on the part of the defendant, that the latter owed no duty to the deceased; but this court held that in view of the facts that the scaffold was upwards of fifty feet from the ground, and unless properly constructed was a most dangerous trap, imperiling the life of any person who might go upon it, and that it was erected for the very purpose of accommodating the workmen, of whom the person killed was one, there was a duty toward them resting upon [p. 479:] the defendant, independent of the contract under which the structure was built, to use proper diligence in it construction. The additional fact that the structure was on the premises of the defendant was relied upon, but we think that even in the absence of that feature, the liability can rest on the principle of Thomas v. Winchester.
Loop v. Litchfield (42 N. Y. 351; 1 Am. Rep. 543) was decided upon the ground that the wheel which caused the injury was not in itself a dangerous instrument, and that the injury was not a natural consequence of the defect, or one reasonably to be anticipated. Losee, v. Clute (51 N. Y. 494; 10 Am. Rep. 638) was distinguished from Thomas v. Winchester upon the authority of Loop v. Litchfield.
We think there should be a new trial as to the defendant Stevenson, and that it will be for the jury to determine whether the death of the plaintiff's intestate was caused by negligence on the part of Stevenson in the construction of the scaffolds.
The judgment should be affirmed, with costs, as to the defendant Smith, and reversed as to the defendant Stevenson, and a new trial ordered as to him, costs to abide the event.
ANDREWS, Ch. J., DANFORTH and FINCH, JJ., concur; EARL J., concurs as to defendant Smith, and dissents as to defendant Stevenson. MILLER, J., absent; TRACY, J., not sitting.
Judgment accordingly.
[In 42 Am. Rep. 311, accompanying a report of Devlin v. Smith, there follows this discussion by the case reporter:]
[42 Am. Rep. 311]
[original pagination in Am. Rep. given in bold brackets; begins at p. 315:]
NOTE BY THE REPORTER.-- There have been several recent decisions more or less in point upon this topic. In Parry v. Smith, C. P. Div., A. was in the employ of M. as housekeeper; B. was a gas-fitter employed by M. to repair a gas meter in a cellar belonging to M., on the premises where A. was employed. A., whose duty it was to turn out and light the gas in the cellar, went there for that purpose with a light. Directly he opened the cellar door an explosion took place, and he was knocked down and seriously injured. The jury found that B. was negligent in doing his work, and that the accident proceeded entirely from B.'s negligence.
Held, that A. had a good cause of action against B. LOPES, J., said: It was "contended on the part of the defendant, that there was no cause of action unless there was privity between the plaintiff and the defendant, or unless what was done by the defendant amounted to a public nuisance, or unless there had been on the part of the defendant fraud, misrepresentation or concealment. It was contended by Mr. Finlay, on the part of the plaintiff, that the action would lie, because the defendant knew he was dealing with gas, a thing highly dangerous in itself, unless great care and caution was used in its management; that the plaintiff's right of action was founded not on contract, but on the duty which attaches to the use of or dealing with a thing in its nature highly dangerous, and likely to cause damage unless managed with great care and caution. I think the [p. 316:] plaintiff's right of action is founded on a duty which I believe attaches in every case where a person is using or is dealing with a highly dangerous thing, which unless managed with the greatest care, is calculated to cause injury to bystanders. To support such a right of action there need be no privity between the party injured and him by whose breach of duty the injury is caused, nor need there be any misrepresentation or concealment, nor need what is done by the defendant amount to a public nuisance. It is a malfeasance independent of contract. It is strange there is no direct authority on this point. A large number of cases were cited, but none of them directly in point. The case of Collis v. Selden, L. R., 3 C. P. 495, was relied on by Mr. Waddy in argument. This was a demurrer to a declaration, and it was held that the declaration was bad, because it did not disclose any duty by the defendant toward the plaintiff for the breach of which an action would lie. Mr. Justice WILLES in his judgment seems to have contemplated an action like the present, for he says: `The declaration is not founded upon any duty of the occupier of the house to protect persons lawfully coming there against any hidden danger of which the defendant knew or ought to have known; but it is founded on alleged carelessness in doing an act, viz., hanging a chandelier. The chandelier is to be regarded as movable property; and the declaration should have shown either that it was a thing dangerous in itself and likely to do damage, or that it was so hung as to be dangerous to persons frequenting the house.' Rapson v. Cubitt, ubi. sup., cited by Mr. Finlay, is in point. There the defendant, a builder, was employed by the committee of a club to execute certain alterations at the clubhouse, including the preparation and fitting of gas-fittings. He made a sub-contract with B., a gas-fitter, to execute part of the work. In the course of doing it the gas exploded and injured the plaintiff, who was the butler of the club. Held, that the defendant was not liable, on the ground that B. was not his servant, but an independent sub-contractor. It seems however to have been assumed that an action against B. would have been maintainable. All the cases are distinguishable from this case, and they are not cases where the alleged cause of action is in respect of a breach of duty in dealing with a thing in its nature dangerous, and likely to cause injury unless great care is used."
In Heaven v. Pender, 9 Q. B. Div. 302, the defendant supplied and erected a staging round ship under a contract with the ship owner. The plaintiff was employed by the ship owner to paint the ship, and in the course of the work fell from the staging and was injured by reason of a defect in its condition. In an action for damages, heId [Note: this judgment was subsequently reversed on appeal, at 11 Q. B. D. 503.] that the defendant had no duty toward the plaintiff to supply a reasonably safe staging, and therefore was not liable. Winterbottom v. Wright, 10 M. & W. 104, followed: George. v. Skivington, L. R. 5 Ex. 1, disapproved. The court said: FIELD, J., "I am of opinion that the rule should be made absolute. The question is whether or not the plaintiff has sued the wrong person. It is undoubted that he was injured by falling from the staging through the defective condition of one of the ropes which supported it, though it does not appear whether the defect was there when the rope was supplied by the defendant. The fact that the rope broke is perhaps prima facie evidence of the defendant's want of care in supplying it, but in order to support the action the plaintiff must show either the existence of a contract between himself and the defendant and a breach by the defendant, or that some relation existed between them which created a duty from the defendant to the plaintiff to use due and reasonable care, and that the defendant was guilty of a breach of that duty. No doubt there are railway and other cases in which occupiers of property have been held liable who have simply invited upon their premises persons in pursuit of their lawful business, and then a duty is created to take due and reasonable care that the premises are not in a dangerous condition. That principle was well settled by Indermaur v. Dames, L. R. 1 C. P. 274; 2 C. P. 311, which has been followed by many subsequent cases. I agree with what was said by BLACKBURN, J., in Smith v. Steel, L. R., 10 Q. B. 125, that there is no distinction to be drawn between fixed and movable property in applying the principle; it makes no difference whether a person as occupier of property invites another upon it, or supplies a thing to be used by another. The case of Smith v. London & St. Katharine Dock Co., L R., 3 C. P. 326, exemplifies this; there the dock owners supplied a gangway to be used in obtaining access to the ship from the shore. They took upon themselves the duty of providing a roadway in fact to the ship, and having moved it so that it became insecure, they were held responsible for injury to the plaintiff caused thereby. But there [p. 317:] is nothing here analogous to the cases founded on an invitation. If it had been shown that after the defendant supplied the staging he had any control over it, or might have moved it away, or prevented persons going on it; or if there had been any evidence to bring him into the position of an occupier in the sense of having the dominion and control over the thing supplied, the case would then have fallen within the principle of the cases I have referred to, but there is no such evidence. I think the evidence shows that the defendant parted with the control of his staging as a landlord does with the control of his property when he lets it. A landlord who reserves to himself, under his contract with the tenant, the duty of repairing walls is in a different position, because there he has the control over them, and a right of entry, for tie purpose of repairing.
"There is no contract between the plaintiff and defendant here: no fraud on the defendant's part; no breach of duty to tell the truth, as in Langridge v. Levy, 2 M. & W. 519, 4 id. 337. I agree that there is no substantial distinction between the present case and George v. Skivington, L. R., 5 Ex. 1. The distinction that in George v. Skivington, the defendant knew that the article supplied was to be used by the plaintiff's wife, does not appear to make any difference. The point was clearly discussed and decided in Winterbottom v. Wright, 10 M. &; W 109. There the defendant, who supplied the coach, knew that it would certainly be used by some coachman. If ever the duty which is relied on here to create a liability existed, it was in that case, but the Court of Exchequer held that the public inconvenience caused by holding the defendant liable unless such circumstances would be so great, that in the absence of any principle competing them so to hold, they gave judgment for the defendant. That decision has been followed in Longmeid v. Holliday, 6 Ex. 76l, and many other cases. The only doubt thrown upon it is by George v. Skivington, L. R., 5 Ex. 1, which I agree is an authority standing by itself in favor of Mr. Charles' contention. I prefer to follow Winterbottom v. Wright, rather than George v. Skivington."
CAVE, J. "I am of the same opinion. Where a licensee goes upon or uses the property, of his licenser for purposes in which the licenser is interested, there is a duty cast upon the licensor to see that the licensee is not exposed to unusual danger; and for a breach of that duty the licensor is responsible. The rule applies equally where the property is land or a thing to be used as the staging was here, the duty arises out of the possession and control of the thing-- not out of the property in it. The only authority which can be cited in support of the plaintiff's case is George v. Skivington. I think that case is inconsistent with Winterbottom v. Wright, unless it can be distinguished on the ground that the duty owing from the vendor to the purchaser is extended to the purchaser's wife where the article is, to the knowledge of the vendor, bought for her use. If it cannot be distinguished, I must follow Winterbottom v. Wright, in preference to George v. Skivington. The case of Nelson v. Liverpool Brewery Company, 2 C. P. D, 311, is not in point; but there are some dicta in it which appear to support Mr. Charles' contention. The cases however upon which those dicta are founded are all clearly distinguishable from the present case. It lies upon the plaintiff here to show that the defendant was his licensor; that the defendant had the possession and control of the staging, and that it was by his permission the plaintiff came to be upon it when it was injured. I think there is no evidence of these essential conditions and therefore that the ruling was wrong, and the defendant entitled to judgment." [Again, note that the judgment was subsequently reversed.]
In Langridge v. Levy, the plaintiff was the son of the purchaser of a gun from the defendant, and was injured by its bursting. The defendant, knowing that the gun was unsafe, told the plaintiff's father that it was safe, meaning that this statement should be communicated to the plaintiff. Baron PARKE said: "It is clear that this action cannot be supported upon the warranty, a contract, for there is no privity in that respect between the plaintiff and the defendant," but he based the holding on the principle that a false statement, made by one to another to be conveyed to a third, and intended to be, acted upon by the third, gives a cause of action to the third if he is injured by reliance upon it.
Winterbottom v. Wright was the case of a coachman, injured by the breakdown of a mall-coach, and it was held that he had no right of action against the coachbuilder. Otherwise, it was said, every passenger and every passenger and every passer-by might hive a right of action against the builder. The coachman had not right of action against his employer, who was the postmasters-general. [p. 318:] In George v. Skivington, the Court of Exchequer held, that upon a purchase by a husband of hair-wash for his wife, the wife could sue for the breach of duty in not supplying a thing reasonably fit for the purpose,
Sherman and Redfield say (Neg. [[section]] 54): "Negligence which consists merely in the breach of a contract will not afford ground of action by any one who is not a party to the contract, nor a person for whose benefit the contract was not avowedly made. But where in omitting to perform a contract, either in whole or in part, one does an act which would be wrong even if no such contract had been made, he is liable to any person proximately injured thereby. This seems to be the correct rule, and one which is consistent with the decisions, though the opinions of the courts state the abstract doctrine in different terms. * * * But if the act of negligence is one which in its nature endangers human life, * * * the act is inherently wrongful, and the party in fault is liable to any one misled or otherwise, involved in injury through his negligence."
See Sturges v. Theol. Ed. Soc'y, 180 Mass., 414; S. C., 39 Am. Rep. 463; Nat. Sav. Bk. of Dist of Columbia v. Ward, 100 U. S. 195, holding that an attorney, who makes a negligent mistake in a search for his client, is not liable therefor to one who lends money to the client in reliance on the search; and Kahl v. Love, 8 Vroom, 5, holding that where a collector of taxes gave a receipt, upon a receipt of a check, for the taxes due on a certain lot, such receipt was exhibited to a purchaser of the lot to show its discharge from the tax at the time of the sale; and the check being unpaid, the city enforced the tax against the property in the hands of the purchaser, such purchaser could not maintain a suit for the loss sustained by him against the collector.
In the latter case, BEASLEY, C. J., said: "It is not every one who suffers a loss from the negligence of another that can maintain a suit on such ground. The limit of the doctrine relating to actionable negligence is, that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss. Such a restriction on the right to sue for a want of care in the exercise of employments or the transaction of business, is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. There would be no bounds to actions and litigious intricacies, if the ill effects of the negligence of men could be followed down the chain of results to the final effect. Under such a doctrine, the careless manufacturer of iron might be made responsible for the destruction of a steamer from the bursting of a boiler, into which his imperfect material, after passing through many hands and various transformations, had been converted. To avoid such absurd consequences, the right of suit for such a cause has been circumscribed with the bounds already defined. That this is a correct statement of the legal rule will readily appear by a reference to a few of the numerous cases upon this subject, and of which Winterbottom v. Wright, 10 M. & W. 109, is a leading one. This suit was for negligence, which had finally ensued in damage to the plaintiff. The question arose on demurrer. The declaration showed that the defendant had contracted with the postmaster-general to provide a mail-coach to convey the mail-bags along a certain line of road; that the plaintiff had been hired by certain persons, who were under contract with the postmaster, to drive the coach; and that the plaintiff had sustained an injury while driving such coach, by its breaking down from latent defects in its construction. It was decided that these facts laid no ground of action--the ground of decision being that the contract was made with the postmaster-general alone, and that the defendant owed no duty to any body else. And in estimating the force of this precedent, it is proper to note that the consideration so much urged on the present occasion, that the defendant is chargeable with notice that his carelessness was liable to affect third parties, was not overlooked by counsel in the case in the Exchequer. The argument was thus put: `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.' But the contention did not prevail, the court saying: `If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions could stop. The only safe course 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 same rule is exemplified in Longmeid v. Holliday, 6 Exch. 761, which holds that one who sells a defective article to be used for a particular purpose, for which it is not fit, is not, in the absence of fraud, [p. 319:] liable for an injury caused to a third person, by some defect in the construction of such article. In this authority, as in the previous one, the right to sue was strictly confined to the person to whom the duty was due under the contract.
"The last illustration to which I shall refer is the recent case of Collis v. Selden, reported in L. R., 3 C. P. 495. The declaration charged that the defendant wrongfully, negligently, and improperly hung a chandelier in a public house, knowing that the plaintiff and others were likely to be therein and under the chandelier; and that the chandelier, unless properly hung, was likely to fail upon and injure them; and that the plaintiff being lawfully in the public house the chandelier fell upon and injured him. In deciding that in these statements a legal cause of action was not disclosed, the court put themselves on the principle heretofore propounded, that is to say, that the defendant apparently owed no duty, by contract or otherwise, to the plaintiff, and that if the door was opened to such a claim there would be no end to actions. One of the judges, in the conclusion of his opinion, referring to the plaintiff, says: `I cannot see any relation which he bears to the defendant whence a duty could result which has been infringed.' It seems to me that is precisely the reason why the present suit will not lie. So far as the plaintiff, as an individual, was concerned, the defendant did not owe the duty of care in the transaction of the business, in the course of which the receipt arose, and being a stranger to that business and to the contract on which it rested, he is too far removed from it to have the right to complain in a court of justice, on the ground that he has been injuriously affected by the careless mode in which it was transacted. In view of the cases cited, and the rule of law which they establish, it does not seem to me that on the assumption of every fact which can, by possibility, he claimed for the case of the plaintiff, the present action can be supported."
In Necker v. Harvey, Michigan Supreme Court, Jan. 1883, the plaintiff was injured by the fall of an elevator on which he was standing. It was manufactured by the defendant for the Detroit Soap Company, under a contract that it should lift 2,000 pounds easily by steam or hand power. It was put up in the factory of the soap company, and the fall occurred three days after, through the breaking of the main shaft. Plaintiff was a workman in the employ of the soap company, and was engaged in loading the elevator with a load of less than 2,000 pounds in weight when it fell. The court said: "The statement of facts so far makes out no cause of action in favor of this plaintiff. It discloses a duty on the part of the defendant to construct an elevator which should lift 2,000 pounds; but the duty was to the soap company and not to anybody else. Nothing is better settled than that an action will not lie in favor of any third party upon a breach of this duty. Winterbottom v. Wright, 10 Mees. & W. 109; Longmeid v. Holliday, 6 Exch. 61; Heaven v. Pender, L. R. Q. B. Div. 302; Losee, v. Clute, 51 N. Y. 474; S. C., 10 Am. Rep. 638. The contract creates the duty, and the contract was only with the party for whom the elevator was constructed."
See Burke v. Shaw, ante.