| [reposted June 26, 2001] | William Baliol Brett, Master of the Rolls (later to be Lord Esher) | Henry Cotton, Lord Justice |
July 30, 1883.
[page 503:]
Negligence--Breach of Duty--Defective Article supplied for Use--Liability of Person supplying a Defective Article causing Injury to the Person who used it.The defendant, a dock owner, supplied and put up a staging outside a ship in his dock under a contract with the shipowner. The plaintiff was a workman in the employ of a ship painter who had contracted with the shipowner to paint the outside of the ship, and in order to do the painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and by reason thereof the plaintiff fell into the dock and was injured:--Held, reversing the decision of the Queen's Bench Division, that the plaintiff, being engaged on work on the vessel in the performance of which the defendant, as dock owner, was interested, the defendant was under an obligation to him to take reasonable care that at the time he supplied the staging and ropes they were in a fit state to be used, and that for the neglect of such duty the defendant was liable to the plaintiff for the injury he had sustained:Held, also, by Brett, M.R., that whenever one person is by circumstances placed in a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.ACTION to recover damages for injuries alleged to have been sustained by the, plaintiff through the negligence of the defendant, under the following circumstances:--The defendant was the owner of a dry dock used for the painting and repairing vessels and as incident to its being so used he supplied and put up the staging necessary to enable the outside other vessel to be painted and repaired when in the dock, but after the staging had been handed over to the shipowner it no longer remained under the control of the defendant.
The plaintiff was a ship painter in the employ of one William Gray, a master painter, who had contracted with the owner of a vessel in the defendant's dock to paint the outside of the vessel, and on the 8th of April, 1882, whilst the plaintiff was engaged in painting the vessel, and using for that purpose the staging which the defendant [p. 504:] had put up on that same day, one of the ropes by which it was suspended from the vessel gave way, and the plaintiff fell in consequence into the dock and was injured.
The ropes had been supplied by the defendant as part of the machinery of the staging, and there was evidence that they had been scorched and were unfit for use with safety at the time the staging was put up, and that reasonable care had not been taken by the defendant as to their state and condition at that time. The action was remitted for trial before the Bow County Court under s. 10 of the County Court Act, 1867 (30 & 31, Vict, c.142). The county court judge gave judgment for the plaintiff for 20l., the amount of damages agreed between the parties.
The Queen's Bench Division, on motion by way of appeal, ordered judgment to be entered for the defendant. [9 Q. B. D. 302]
The plaintiff appealed.
A. Charles, Q. C., and C. C. Scott, for the plaintiff. The plaintiff was in the defendant's dock on the business of the shipowner, that is to say, on the work of the ship, and in the course of such work he was using the staging put up for that purpose by the defendant. There was therefore a duty on the defendant's part towards the plaintiff that the staging should be in a state of reasonable safety and fitness for the work. The plaintiff was on the defendant's property by invitation, and the staging was in fact dangerous and in the nature of a trap, and the defendant was therefore liable for the injury it caused to the plaintiff. The case resembles Indermaur v. Dames [Law Rep. 1 C. P. 274; Law Rep. 2 C. P. 311] and Smith v. London and St. Katharine Docks Co. [Law Rep. 3 C. P. 326]. The defendant must have known that the staging would be used by painters in order to paint the vessel as much as in Smith v. London and St. Katharine Docks Co. [Law Rep. 3 C. P. 326]. It was known by the docks company that the gangway would be used by passengers to go to the ship. Winterbottom v. Wright [10 M. & W. 109] is distinguishable from the present case, as there the only duty was one which arose from contract, and as the plaintiff was not a party to the contract there was no privity between him and [p. 505:] the defendant, and therefore no right to sue. There is nothing inconsistent between Winterbottom v. Wright [10 M. & W. 109] and George v. Skivington [Law Rep. 5 Ex. 1] and it is not necessary, as the Queen's Bench Division considered, to elect between those two cases. George v. Skivington was an extension of Langridge v. Levy [2 M &W. 519; 4 M. & W. 337] to a case of negligence in which the defendant knew by whom the article he supplied would be used. That case is good law, and supports the present. Collis v. Selden [Law Rep. 3 C. P. 495] and Sullivan v. Waters [14 Ir. L. P., 460] are distinguishable, as the plaintiff in both those cases was only a licensee, and there was no invitation in either of them as there was to the plaintiff in this case. Longmeid v. Holliday [6 Ex. 761; 20 L. J. (Ex.) 430] is also distinguishable, as there was no negligence.[They also referred to Corby v. Hill [4 C. B. (N. S.) 556; 27 L. J.(C. P.) 318]; Todd v. Flight [9 C. B. (N. S.) 377. ]; Gandy v. Jubber [5 B. & S. 78]; Brass v. Maitland [6 E. & B. 470; 26 L. J. (Q. B.) 49]; Blackmore v. Bristol & Exeter Ry. Co. [8 E. & B. l035]; Maearthy v. Younge [6 H. &..N. 329; 30 L. J. (Ex.) 227] and Francis v. Cockrell. [Law Rep. 5 Q. B. 184, at p. 501. ]]Bompas, Q. C., and H. Dickens, for the defendant. As soon as the staging had been put up against the sides of the vessel it became, as it were, part of the vessel, and the defendant's liability in respect of it ceased, for he had no longer any control over it. The defendants' liability, if at all, could only arise out of the contract under which he supplied the staging with the use of the dock to the shipowner, and therefore no one who was not a party to that contract could sue the defendant: Alton v. Midland Ry. Co. [19 C. B. (N. S.) 213] and Dickson v. Reuter's Telegraph Co. [2 C. P. D. 62] The case of Winterbottom v. Wright [10 M. & W. 109] governs the present case. George v. Skivington [Law Rep. 5 Ex. 1] is the first case in which a person who negligently supplied a defective article to a customer was liable to any one who might use it. There was no fraud in the present case, or anything to [p. 506:] shew that the defendant was aware of the defective state of the rope. Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337] was decided entirely on the ground that there was fraud there by the defendant, and the Court agreed that in the absence of fraud such an action would not lie. [COTTON, L. J., referred to Dixon v. Bell [5 M. & S. 198]]. That was the case of a dangerous instrument, a loaded gun, which the defendant knew to be loaded. Collis v. Selden [Law Rep. 3 C. P. 495] shews that the mere fact that the defendant knew that such a person as the plaintiff might probably use the staging would not amount to an invitation to him to use it. Unless the defendant knew of the dangerous condition of the staging, there was no duty he owed the plaintiff for the breach of which he could be liable: Southcote v. Stanley [1 H.& N. 247]; Gerhard v. Bates [2 E. B. 476]. Cur. adv. vult.
July 30. The following judgments were delivered:--
BRETT, M. R. In this case the plaintiff was a workman in the employ of Gray, a ship painter. Gray entered into a contract with a shipowner whose ship was in the defendant's dock to paint the outside of his ship. The defendant, the dock owner, supplied, under a contract with the shipowner, an ordinary stage to be slung in the ordinary way outside the ship for the purpose of painting her. It must have been known to the defendant's servants, if they had considered the matter at all, that the stage would be put to immediate use, that it would not be used by the shipowner, but that it would be used by the plaintiff, a working ship painter. The ropes by which the stage was slung, and which were supplied as a part of the instrument by the defendant, had been scorched and were unfit for use and were supplied without a reasonably careful attention to their condition. When the plaintiff began to use the stage the ropes broke, the stage fell, and the plaintiff was injured. The Divisional Court held that the plaintiff could not recover against the defendant. The plaintiff appealed. The action is in form and substance an action of negligence. That the stage was, through [p. 507:] want of attention of the defendant's servants, supplied in a state unsafe for use is not denied. But want of attention amounting to a want of ordinary care is not a good cause of action, although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff.
If a person contracts with another to use ordinary care or skill towards him or his property the obligation need not be considered in the light of a duty; it is an obligation of contract. It is undoubted, however, that there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty. Two drivers meeting have no contract with each other, but under certain circumstances they have a reciprocal duty towards each other. So two ships navigating the sea. So a railway company which has contracted with one person to carry another has no contract with the person carried but has a duty towards that person. So the owner or occupier of house or land who permits a person or persons to come to his house or land has no contract with such person or persons, but has a duty towards him or them. It should be observed that the existence of a contract between two persons does not prevent the existence of the suggested duty between them also being raised by law independently of the contract, by the facts with regard to which the contract is made and to which it applies an exactly similar but a contract duty. We have not in this case to consider the circumstances in which an implied contract may arise to use ordinary care and skill to avoid danger to the safety of person or property. We have not in this case to consider the question of a fraudulent misrepresentation, express or implied, which is a well recognised head of law. The questions which we have to solve in this case are--what is the proper definition of the relation between two persons other than the [p. 508:] relation established by contract, or fraud, which imposes on the one of them a duty towards the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property; and whether the present case falls within such definition. When two drivers or two ships are approaching each other, such a relation arises between them when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. This relation is established, in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not. It is established, as it seems to me, because any one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill under such circumstances there would be such danger. And every one ought by the universally received rules of right and wrong, to think so much with regard to the safety of others who may be jeopardized by his conduct; and if, being in such circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care or skill, and injury ensue, the law, which takes cognizance of and enforces the rules of right and wrong, will force him to give an indemnity for the injury. In the case of a railway company carrying a passenger with whom it has not entered into the contract of carriage the law implies the duty, because it must be obvious that unless ordinary care and skill be used the personal safety of the passenger must be endangered. With regard to the condition in which an owner or occupier leaves his house or property other phraseology has been used, which it is necessary to consider. If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the inviter the duty of using reasonable care so to keep his house or warehouse that it may not endanger the person or property of the person invited. This is in a sense an accurate phrase, and as applied to the circumstances a sufficiently accurate phrase. Yet it is not accurate if the word "invitation" be used in its ordinary sense. By opening a shop you do not really invite, you do not ask [p. 509:] A. B. to come in to buy; you intimate to him that if it pleases him to come in he will find things which you are willing to sell. So, in the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them you impose on yourself a duty not to lay a trap for him. This, again, is in a sense a true statement of the duty arising from the relation constituted by the permission to enter. It is not a statement of what causes the relation which raises the duty. What causes the relation is the permission to enter and the entry. But it is not a strictly accurate statement of the duty. To lay a trap means in ordinary language to do something with an intention. Yet it is clear that the duty extends to a danger the result of negligence without intention. And with regard to both these phrases, though each covers the circumstances to which it is particularly applied, yet it does not cover the other set of circumstances from which an exactly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger proposition which involves and covers both sets of circumstances. The logic of inductive reasoning requires that where two major propositions lead to exactly similar minor premisses there must be a more remote and larger premiss which embraces both of the major propositions. That, in the present consideration, is, as it seems to me, the same proposition which will cover the similar legal liability inferred in the cases of collision and carriage. The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Without displacing the other propositions to which allusion has been made as applicable to the particular circumstances in respect of which they have been enunciated, this proposition includes, I think, all the recognised cases of liability. It is the only proposition which covers them all. It may, therefore, safely be affirmed to be a true proposition, unless some obvious case can be stated in [p. 510:] which the liability must be admitted to exist, and which yet is not within this proposition. There is no such case. Let us apply this proposition to the case of one person supplying goods or machinery, or instruments or utensils, or the like, for the purpose of their being used by another person, but with whom there is no contract as to the supply. The proposition will stand thus: whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognise at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action negligence. This includes the case of goods, &c., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The cases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract, and not merely as a duty imposed by law, though it may not be useless to [p. 511:] observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would according to the rule above stated imply the duty.
Examining the rule which has been above enunciated with the cases which have been decided with regard to goods supplied for the purpose of being used by persons with whom there is no contract, the first case to be considered is inevitably Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337]. It is not an easy case to act upon. It is not, it cannot be, accurately reported; the declaration is set out; the evidence is assumed to be reported; the questions left to the jury are stated. And then it is said that a motion was made to enter a nonsuit in pursuance of leave reserved on particular grounds. Those grounds do not raise the question of fraud at all but only the question of remoteness. And although the question of fraud seems in a sense to have been left to the jury, yet no question was, according to the report, left to them as to whether the plaintiff acted on the faith of the fraudulent misrepresentation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation. The report of the argument makes the object of the argument depend entirely upon an assumed motion to arrest the judgment, which raises always a discussion depending entirely on the form of the declaration, and the effect on it of a verdict, in respect of which it is assumed that all questions were left to the jury. If this was the point taken the report of the evidence, and of the questions left to the jury is idle! The case was decided on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant intended the representation to be communicated to the son. Why he should have such an intention in fact, it seems difficult to understand. His immediate object must have been to induce the father to buy and pay for the gun. It must have been wholly indifferent to him whether after the sale and payment the gun would be used or not by the son. I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an authority. But taking the case to be decided on the ground of a fraudulent misrepresentation made hypothetically to [p. 512:] the son, and acted upon by him, such a decision upon such a ground in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud. It seems to be a case which is within the proposition enunciated in this judgment, and in which the action might have been supported without proof of actual fraud. And this seems to be the meaning of Cleasby, B., in the observations he made on Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337] in the case of George v. Skivington [Law Rep. 5 Ex. 1, 5]. In that case the proposition laid down in this judgment is clearly adopted. The ground of the decision is that the article was, to the knowledge of the defendant, supplied for the use of the wife and for her immediate use. And certainly, if he or anyone in his position had thought at all, it must have been obvious that a want of ordinary care or skill in preparing the prescription sold would endanger the personal safety of the wife. In Corby v. Hill [4 C. B. (N. S.) 556; 27 L. J. (C. P.) (N. S.) 318] it is stated by the Lord Chief Justice that an allurement was held out to the plaintiff. And Willes, J. stated that the defendant had no right to set a trap for the plaintiff. But in the form of declaration suggested by Willes, J., on p. 567, there is no mention of allurement, or invitation, or trap. The facts suggested in that form are, "that the plaintiff had license to go on the road, that he was in consequence accustomed and likely to pass along it, that the defendant knew of that custom and probability, that the defendant negligently placed slates in such a manner as to be likely to prove dangerous to persons driving along the road, that the plaintiff drove along the road, being by reason of the license lawfully on the road, and that he was injured by the obstruction." It is impossible to state a case more exactly within the proposition laid down in this judgment. In Smith v. London and St. Katharine Docks Co. [Law Rep. 3 C. P. 326], the phrase is again used of invitation to the plaintiff by the defendants. Again, let it be observed that there is no objection to the phrase as applied to the case. But the real value of the phrase may not improperly be said to be, that invitation imports knowledge by the defendant of the probable use by the plaintiff of the article supplied, and therefore carries with it the relation [p. 513:] between the parties which establishes the duty. In Indermaur v. Dames [Law Rep. I C. P. 274; Law Rep. 2 C. P. 311], reliance is again placed upon a supposed invitation of the plaintiff by the defendant. But again, it is hardly possible to state facts which bring a case more completely within the definition of the present judgment. In Winterbottom v. Wright [10 M. & W. 109], it was held that there was no duty cast upon the defendant with regard to the plaintiff. The case was decided on what was equivalent to a general demurrer to the declaration. And the declaration does not seem to shew that the defendant, if he had thought about it, must have known, or ought to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of which he could be said to be one, or that it would be so driven within any time which would make it probable that the defect would not be observed. The declaration relied too much on contracts entered into with other persons than the plaintiff. The facts alleged did not bring the case within the proposition herein enunciated. It was an attempt to establish a duty towards all the world. The case was decided on the ground of remoteness. And it is as to too great a remoteness that the observation of Lord Abinger is pointed, when he says that the doctrine of Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337] is not to be extended. In Francis v. Cockrell [Law Rep. 5 Q. B. 184, at p. 501] the decision is put by some of the judges on an implied contract between the plaintiff and the defendant. But Cleasby, B. (p. 515), puts it upon the duty raised by the knowledge of the defendant that the stand was to be used immediately by persons of whom the plaintiff was one. In other words he acts upon the rule above laid down. In Collis v. Selden [Law Rep. 3 C. P. 495], it was held that the declaration disclosed no duty. And obviously, the declaration was too uncertain. There is nothing to shew that the defendant knew more of the probability of the plaintiff rather than any other of the public being near the chandelier. There is nothing to shew that the plaintiff was more likely to be in the public-house than any other member of the public. There is nothing to shew how soon after the hanging of the chandelier anyone might be expected or permitted to enter the room in which it was. The [p. 514:] facts stated do not bring it within the rule. There is an American case: Thomas and Wife [6 N. Y. 397{Thomas v. Winchester}], cited in Mr. Horace Smith's Treatise on the Law of Negligence, p. 88, note (t), which goes a very long way. I doubt whether it does not go too far. In Longmeid v. Holliday [6 Ex. 761; 20 L. J. (Ex.) 430], a lamp was sold to the plaintiff to be used by the wife. The jury were not satisfied that the defendant knew of the defect in the lamp. If he did, there was fraud; if he did not, there seems to have been no evidence of negligence. If there was fraud, the case was more than within the rule. If there was no fraud, the case was not brought by other circumstances within the rule. In Gautret v. Egerton [Law Rep. 2 C. P. 371, at p. 374], the declaration was held by Willes, J., to be had on demurrer, because it did not shew that the defendant had any reason to suppose that persons going to the docks would not have ample means of seeing the holes and cuttings relied on. He does not say there must be fraud in order to support the action. He says there must be something like fraud. He says: "Every man is bound not wilfully to deceive others." And then in the alternative, he says: "or to do any act which may place them in danger." There seems to be no case in conflict with the rule above deduced from well admitted cases. I am, therefore, of opinion that it is a good, safe, and just rule.
I cannot conceive that if the facts were proved which would make out the proposition I have enunciated, the law can be that there would be no liability. Unless that be true, the proposition must be true. If it be the rule the present case is clearly within it. This case is also, I agree, within that which seems to me to be a minor proposition--namely, the proposition which has been often acted upon, that there was in a sense, an invitation of the plaintiff by the defendant, to use the stage. The appeal must, in my opinion, be allowed, and judgment must be entered for the plaintiff.
COTTON, L. J. Bowen, L. J., concurs in the judgment I am about to read. In this case the defendant was the owner of a dock for [p. 515:] repair of ships, and provided for use in the dock the stages necessary to enable the outside of the ship to be painted while in the dock, and the stages which were to be used only in the dock were appliances provided by the dock owner as appurtenant to the dock and its use. After the stage was handed over to the shipowner it no longer remained under the control of the dock owner. But when ships were received into the dock for repair and provided with stages for the work on the ships which was to be executed there all those who came to the vessels for the purpose of painting and otherwise repairing them were there for business in which the dock owner was interested, and they, in my opinion, must be considered as invited by the dock owner to use the dock and all appliances provided by the dock owner as incident to the use of the dock. To these persons, in my opinion, the dock owner was under an obligation to take reasonable care that at the time the appliances provided for immediate use in the dock were provided by him, they were in a fit state to be used that is, in such a state as not to expose those who might use them for the repair of the ship to any danger or risk not necessarily incident to the service in which they are employed. That this obligation exists as regards articles of which the control remains with the dock owner was decided in Indermaur v. Dames [Law Rep. 1 C. P. 274; Law Rep. 2 C. P. 311], and in Smith v. London and St. Katherine Docks Co. [Law Rep. 3 C. P. 326] the same principle was acted on. I think that the same duty must exist as to things supplied by the dockowner for immediate use in the dock, of which the control is not retained by the dockowner, to the extent of using reasonable care as to the state of the articles when delivered by him to the ship under repair for immediate use in relation to the repairs. For any neglect of those having control of the ship and the appliances he would not be liable, and to establish his liability it must be proved that the defect which caused the accident existed at the time when the article was supplied by the dockowner.
Blackmore v. Bristol and Exeter Ry. Co. [8 E. & B. 1035], may be relied on as at variance with the opinion thus expressed by me, but I think that the objection is not well founded. If the plaintiff is to be [p. 516:] considered as a volunteer there would be no implied request or invitation to him by the defendant to, use the dock and the appliances provided. But he was there for the purpose of work, for the due execution of which the defendant received the ship into his dock, and the defendant received payment as remuneration for allowing the work to be done in his docks and for providing the necessary appliances or enabling it to be done. The plaintiff was therefore engaged in work in the performance of which the defendant was interested, and he cannot be looked upon in the light of a volunteer. Whether the Court was right in Blackmore's Case [8 E. & B. 1035] in treating plaintiff as a volunteer may be a question. But as the ground of the decision is that he was so, that circumstance prevents the case becoming an, authority inconsistent in principle with the conclusion at which I have arrived.
This decides this appeal in favour of the plaintiff, and I am unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived.
Take for instance the case of Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337], to which the principle if it existed would have applied. But the judges who decided that case based their judgment on the fraudulent representation made to the father of the plaintiff by the defendant. In other cases where the decision has been referred to judges have treated fraud as the ground of the decision, as was done by Coleridge, J., in Blackmore v. Bristol and Exeter Ry. Co. [8 E. & B. 1035]; and in Collis v. Selden [Law Rep. 3 C. P. 495], Willes, J., says that the judgment in Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337], was based on the fraud of the defendant. This impliedly negatives the existence of the larger general principle which is relied on, and the decisions in Collis v. Selden [Law Rep. 3 C. P. 495], and in Longmeid v. Holliday [6 Ex. 761; 20 L. J. (Ex.) 430] (in each of which the plaintiff failed), are in my opinion at variance with the principle contended for. The case of George v. Skivington [Law Rep. 5 Ex. 1], and especially what is said by Cleasby, B., in giving judgment in that [p. 517:] case seem to support the existence of the general principle. But it is not in terms laid down that any such principle exists, and that case was decided by Cleasby, B., on the ground that the negligence of the defendant which was his own personal negligence was equivalent, for the purposes of that action, to fraud on which (as he said) the decision in Langridge v. Levy [2 M. & W. 519; 4 M. & W. 337] was based.
In declining to concur in laying down the principle enunciated by the Master of the Rolls, I in no way intimate any doubt as to the principle that anyone who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing is liable for injury caused to others by reason of his negligent act.
For the reasons stated I agree that the plaintiff is entitled to judgment, though I do not entirely concur with the reasoning of the Master of the Rolls.
Judgment reversed.
Solicitor for plaintiff: E. J. Anning.
Solicitors for defendant: Watsons, Son, & Room.