CHAPTER III.

LIABILITY FOR INANIMATE FORCES.

Damages Caused by Blasting.

HAY v. THE COHOES COMPANY.

2 N. Y. 159. 1848.

Plaintiff's declaration alleged that defendant company wrongfully blasted and threw large quantities of earth, gravel, slate and stones upon plaintiff's house and premises, and shut and darkened his windows, broke his windows and doors, etc. Plea of not guilty. Plaintiff's evidence tended to prove that defendants, in excavating a canal upon their own land, knocked down the stoop to plaintiff's house, and part of the chimney, and placed boards on all the front windows of his house, obstructing the light, etc. Defendants contended that the burden was on plaintiff to allege and prove negligence, unskilfulness, wantonness or delay, and that he had failed to do this. Plaintiff was nonsuited in the trial court, but the Supreme Court reversed the judgment and granted a new trial, from which decision defendants appealed to the Court of Appeals.

GARDNER, J. It is an elementary principle in reference to private rights, that every individual is entitled to the undisturbed possession and lawful enjoyment of his own property. The mode of enjoyment is necessarily limited by the rights of others otherwise it might be made destructive of their rights altogether. The defendants had the right to dig the canal, the plaintiff had the right to the undisturbed possession of his property.

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No one questions that the improvement contemplated by the defendants upon their own premises were proper and lawful. The means by which it was prosecuted were illegal notwithstanding. For they disturbed the rightful possession of the plaintiff and caused a direct and immediate injury to his property. For the damages resulting, the defendants are liable. The judgment of the Supreme Court should be affirmed.

Liability for Electricity.

BRAUN v. BUFFALO GEN. ELEC. CO.

200 N. Y. 484, 94 N. E. 206. 1911.

HISCOCK, J. While plaintiff's intestate was engaged as a carpenter in the erection of a building on private premises in the city of Buffalo, he took hold of two wires strung and maintained by the respondent across said premises and carrying an electric current of a high voltage. Inasmuch as the insulation on these wires had become ragged and defective there followed the quite inevitable result-death of the man. The learned courts below have unanimously decided that the intestate was killed without legal responsibility on the part of the respondent for the part it took in bringing about this result, and in determining whether this conclusion was justified we are called on to consider the rule of care and responsibility which governs a company carrying wires charged with dangerous currents of electricity over private premises in the midst of a large and thickly populated city.

As a preliminary general consideration counsel for the respondent, in view of the evidence that the insulation such as was originally placed on the wires would be effective for only three years, argues that it would be a great hardship to require a company like the respondent to renew this insulation so frequently, and that as a matter of general policy we should not impose any such burden. It is probable that the weight of the burden is somewhat exaggerated, but however that may be, this argument does not impress us as being very decisive of the rule which should be applied in this or similar cases. It is a matter of common knowledge that a company like the respondent for its own profit ordinarily installs and maintains its wires across private premises without compensation. In a large city overhead wires are apt to be numerous, and there are no such marked characteristics of the different ones as would enable an ordinary layman to distinguish between those which are comparatively harmless, like a telephone wire, and those which are charged with a deadly current like those here. While the convenience of electric and telephone wires is obvious and their maintenance should not be burdened with excessive liabilities, still it seems

clear that a company maintaining dangerous wires should not be relieved on the ground of expense from the affirmative duty of exercising a reasonable degree of care to maintain a proper insulation and thereby prevent accidents reasonably to be apprehended to those lawfully coming in the neighborhood of such wires.

Little need or can be said about the condition of the wires, for if the respondent owed any obligation whatever of making them safe it would scarcely have been more negligent if, instead of allowing them to remain uninspected and unrepaired as it did, it had strung and maintained absolutely naked wires. The only question which is at all close is whether the respondent in the exercise of reasonable care and foresight would have apprehended that the premises over which the wires were strung might be so used as to bring people in contact with them, and whether, therefore, it should have guarded against such a contingency. As indicated, I think this was fairly a question for the jury. * For these reasons I recommend that the judgment of both courts be reversed and a new trial granted. Judgment reversed.

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Damages Caused by Poisons.

SUTTON'S ADM'R v. WOOD ET AL.

120 Ky. 23, 8 Anno. Cas. 894. 1905.

Plaintiff's decedent sent her boy to the drug store for some morphine. One of the members of the drug firm was not a registered pharmacist, nor did he understand mixing drugs nor anything technically of their nature and effects. It was claimed that he gave the boy strychnine instead of morphine, and failed to place upon the outside of the package a strychnine label containing the names of two or more common antidotes for that poison. Decedent asked her daughter to give her some morphine, some days after the above purchase was made. The girl, without unwrapping the package fully, gave her mother a dose of what they both supposed was morphine, but which proved to be strychnine. The state statutes provided that only licensed pharmacists should put up drug prescriptions, and that whenever poisons were sold they should be labeled as such, two or more

common antidotes named on the label, and a record should be kept of the person buying the poison, his residence, the purpose for which it was to be used, the amount sold, etc. A penalty was provided for the violation of these provisions of the statute. Suit brought against all the members of the drug firm for damages for negligence in sending decedent the wrong drug. Judgment for defendants. Plaintiff appealed. Reversed.

O'REAR, J.

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When, however, damage results from the neglect, the fact that it may also be punished as an offense against the criminal law will not prevent one specially damaged by it from recovering for it. Before the statute above quoted an action would lie against a druggist who negligently furnished a customer a poisonous drug, instead of some other and different one which had been bought of him, not calling the customer's attention to the substitution, where damage resulted from the act. By the statutes regulating the practice of pharmacy a comprehensive system has been devised, to guard the public against incompetent, inexpert handlers of subtle, dangerous drugs, designed and sold to be administered to people. Great care has been observed in prescribing rules which, in their application, are believed to minimize the dangers incident to this business. As the legislation was to enhance the public's protection, the duties imposed on the druggists were intended as statutory tests of care, in so far as the statutes went. Their nonobservance is per se neglect of duty, as well as neglect of care. When special damage flows from it, there exists prima facie a case of actionable negligence.

It is not true, either, as stated in the sixth instruction, that the druggist and the customer are under the same degree of care in the furnishing and taking the drug. The fact alone that one is prohibited from acting in the matter at all, except under a license, and after a technical training, evinces that between the care to be observed by the pharmacist and by his customer, there is a difference, and a necessary one. The customer's duty is to exercise ordinary care for his own safety; the druggist's, to exercise the highest degree of care for the safety of the public dealing with him. The judgment must be reversed.

CHAPTER IV.

LIABILITY FOR INJURIES FROM LAWFUL USE OF ONE'S LAND.

Waters Artificially Collected.

RYLANDS v. FLETCHER.

L. R., 3 H. L. 330 (Eng.). 1868.

Fletcher sued Rylands in the Court of Exchequer for damages resulting from water overflowing into Fletcher's mines from a reservoir which the defendant had built. Judgment for defendant.

Judgment was reversed in the Court of Exchequer Chamber, and defendant brought the case to the House of Lords on

error.

THE LORD CHANCELLOR (LORD CAIRNS). The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment in the Court of Exchequer Chamber, where he states the opinion of that court as to the law in these words: "We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth from his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works,