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ence of which he was not aware. Can Z recover from X?98

(1) If X purposely makes the ladder defective so that some one will be injured, he will be liable to that person injured, whosoever he may be. One always owes a duty to refrain from purposely injuring another.

(2) If X, however, was only negligent in the manufacture or inspection of the article, and sold it without any actual knowledge of the defect, the case is different. The contract of the manufacturer is only with Y, and Z clearly cannot hold X upon that." But although X owes no duty to Z on the contract, does he not owe a duty to Z to refrain from causing him injury by sending out to him a defective chattel when Z cannot reasonably discover the defect? The case just cited has been misunderstood as holding there was no such duty, and the weight of authority is that there is no recovery by Z.1 The correctness of such a doctrine is vigorously contested by a number of writers, and there are cases which are inconsistent with it.3

37. Same subject-Exceptions. Wherever the rule prevails that Z cannot hold X, there is always made an exception as to those chattels which are inherently dangerous to human life. There is hardly to be found a logical difference in the two types of

98 The same situation is presented and the same rules should apply when X is not a manufacturer also, but is only a vendor of the chattel, or when Z is not a purchaser, but is only a bailee or user of the article.

99 Winterbottom v. Wright, 10 M. & W. 109 (Eng.).

1 Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S. W. 630.

See 44 Am. Law Reg. (N. S.) 280, 289, 337.

3 Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118.

cases, but the exception has a practical reason for existence. The leading American case is Thomas v. Winchester. Here, the defendant by mistake sold to A, a druggist, for extract of dandelion, tincture of belladonna, a deadly poison. A in turn sold it to F, a druggist, and F sold part of the bottle to the plaintiff, who became very ill therefrom, but who got well. It has been remarked that "the fact that the article is likely to produce damage is a good reason for requiring a greater degree of care." While this is true, it offers no reason for changing the class of persons toward whom lies the duty to take that care. However, the result reached here has been adopted by the courts as the law."

And to the general rule stated in §35, there may be further limitations. In George v. Skivington, the defendant, a chemist, compounded a hair wash of improper and injurious ingredients and sold it to the plaintiff's husband for use by the plaintiff. She did use it and sustained an injury. The case does not come under the exception of Thomas v. Winchester, as the medicine was only harmful and not dangerous to human life, but the court allowed a recovery on the ground that the chemist knew that the plaintiff was going to use it. In England, one for whose benefit a contract is made, cannot sue upon it unless he be a contracting party. Hence the suit was not there maintainable on contract. There seems no real reason why the fact that the chemist knew

46 N. Y. 397, LEADING ILLUSTRATIVE CASES.

See also Burk v. Creamery Package Mfg. Co., 126 Iowa 730, 102 N. W. 793.

6 L. R., 5 Ex. 1 (Eng.).

who the particular person was who was going to use the preparation should change the result in tort, for in every instance the druggist knows that it will be used by some one, but this was here held a sufficient circumstance to create a duty to the plaintiff. It seems that there would not have been in England a duty to those to whom the plaintiff might have given or sold the article."

8

38. Same subject.-(3) If X, however, knows that the ladder is defective, and particularly if he conceals the defects, and sells it nevertheless, the courts treat this as fraud or deceit. The case, therefore, falls more nearly in the first class of § 36 than in the second, and the seller is held to a much greater degree of liability than when he is merely negligent. This exact case arose in Schubert v. J. R. Clark Co.," where the defendant manufacturer concealed the defect in the ladder with varnish. He, the defendant, sold it to a dealer who in turn sold it to the plaintiff, who was injured by a fall due to the defect in the ladder. The plaintiff was allowed to recover from the manufacturer.10

A. The Duty of the Occupier of Land.

39. Duty to a user of the public highway.-In § 35 it was noted that the duty owed by an occupier of land as to keeping his premises safe varies greatly,

7 But see Farrant v. Barnes, 11 C. B. (N. S.) 553 (Eng.).

8 State v. Fox, 79 Md. 514, 29 Atl. 601. (Horse with glanders.) The case is also rested on the "dangerous to life" principle.

9 49 Minn. 331, 51 N. W. 1103.

10 So in Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, a dealer who knowingly sold a defective folding bed to a boarding-house keeper was held liable to a boarder who was injured by it.

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depending upon who the person is that complains of his conduct.

A traveler upon a public highway ordinarily has no right to deviate therefrom, and, if he does, he becomes a trespasser upon the land adjacent thereto. From this it might be argued that if he inadvertently gets upon such land (mistake being generally no excuse for a trespass), there is no greater duty owed to him than to any other trespasser. However, one using the highway, although proceeding with due care, might easily because of darkness, or a fall, unintentionally get across the boundary line which separates the highway and the adjacent property. If the land occupant were allowed to excavate his property clear up to this imaginary line, he would make even careful and lawful travel on the highway dangerous.

40. Same subject-Continued. If the danger was there when the road was dedicated, it must be taken that the public has accepted the highway as it is, and the land occupant owes no duty to make a change in or to guard his premises;11 but if the road was safe when it was dedicated, the land occupant must not make a change in the condition of the adjoining premises so near the highway as in fact to endanger the traveler who is lawfully upon it.12 The instance most frequently found in the cases is that of digging an excavation along the road, but there seems no reason why the placing of objects which might be run into by a slight deviation or which

11 Fisher v. Prowse, 2 B. & S. 770 (Eng.).

12 Barnes v. Ward, 9 C. B. 392 (Eng.).

might by their unusual nature frighten a horse would not come under the same rule.13

vene.

If the excavation is at some distance from the way, the rule does not apply. There can be no definite mathematical rule stating how many feet must interTo be unlawful, the object or pit must substantially adjoin the highway. It is a matter of probability of danger. If the excavation or object does in fact endanger the traveler, the defendant will be liable.14

41. Duty to a trespasser.-If the person injured is a trespasser in any other way than that set forth in the preceding section, he is such a wrong-doer that he enters on another's land absolutely at his own risk as to any dangers that passively exist upon it. That is, the occupier owes no duty whatever to a trespasser to keep his premises in a safe condition. Thus, in Sullivan v. Boston & A. R. R. Co.,15 a person who had been playing ball climbed upon the defendant's building to recover the ball, which had lodged there. There was an unguarded live electric wire upon the building and the trespasser came in contact with it and was killed. It was held that the defendant was not liable. If the defendant had known that persons were accustomed to climb on the roof, the result would probably have been different, under the rule of § 42.16 In Ponting v. Noakes," the defendant was

13 Brown v. E. & M. Ry. Co., 22 Q. B. D. 391 (Eng.).

14 Binks v. S. Y. Ry., 3 B. & S. 244 (Eng.); Norwich v. Breed, 30 Conn. 535, LEADING ILLUSTRATIVE CASES.

15 156 Mass. 378, 31 N. E. 128. See to same effect Anderson v. Ft. Dodge, etc., Ry., 150 Iowa 465, 130 N. W. 391.

16 Connell v. Elec. Ry. Co., 131 Iowa 622.

17 (1894) 2 Q. B. 281 (Eng.).

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