much influenced by the fact that many people during that period have passed by or over it unhurt. The cases which arise under this head usually involve a duty to fence (where not provided by statute), or a duty to repair. It must be remembered that this is only as to the negligence or no negligence of the defendant, and is outside any question of the plaintiff's contributory negligence. 146. In Toomey v. London and Brighton Ry. Co. there were two 3 C. B: N. S. doors on the platform of a station, the one marked "For gentlemen," the other "Lamp room." The plaintiff desiring to go to the urinal opened by mistake the lamp-room door, fell down some steps and was injured. In an action against the company he was nonsuited. In Bolch v. Smith the workmen in a Government dockyard 7 H. & N. 736. were in the habit of using certain water-closets erected for their accommodation, to arrive at which they used certain paths across the yard. The defendant, a Government contractor, was permitted to erect machinery in the yard, which he did across one of these paths. A workman going along this path, stumbled, and putting out his hand to save himself, his arm was caught in the machinery and lacerated. It was held, there being no duty to fence, either by statute or because it was in the nature of a trap, and the absence of fencing being apparent, that the defendant was not liable. In Cornman v. Eastern Counties Ry. Co. there was on the 4 H. & N. 781. platform a portable weighing-machine, the foot of which pro jected about six inches above the level of the platform. It mischief have had been in that position for over five years. The plaintiff Common being at the station in a crowd was driven against the machine enquiry: and injured. The plaintiff was nonsuited; Bramwell, B., said, "In such a case it is always a question whether the mischief could have been reasonably foreseen." In Longmore v. Great Western Ry. Co., the company had connected two platforms by means of a wooden bridge, which the jury found to be in a dangerous condition; there was a second bridge at another point of the platform. At the place seen by the defendant? 19 C. B: N. S. 183. L. R. I C. P. 300. Premises already used by many people presumed safe. Unprotected through which the deceased fell there was a descent of eight openings. or ten steps, between which and the handrail at the side there was an opening of about seven feet by four without any protection. The bridge had been in use ten years; the accident happened on a moonlight night, but was the first that had ever happened although thousands of people (including the plaintiff) had used the bridge before. The company were held liable. In Crafter v. Metropolitan Ry. Co. the staircase leading down to the platform had a brass nosing which had become worn and slippery from constant use. The plaintiff slipped and was injured. The evidence as to prudent conduct given against the company was that "brass was an improper thing for the surface of the stairs, and that lead would have been better, because less slippery." There was no handrail. Erle, C.J., held that this was not conclusive proof of the company's negligence; more especially as thousands of people (including the plaintiff) had passed up and down the stairs with safety. Willes, J., declined to be influenced by the expert evidence: "We must," he said, "take that evidence with the common experience which every one has. We all know that brass is a material which is commonly used for the nosing of stairs in public offices, steamboats on the river, and other places of much resort." The preceding case was distinguished, because the brass on the staircase was not unusual, whereas a hole or concealed trap was. The prudence of using brass could not be negatived without saying that the common experience of ordinary men as to its safety was fallacious: possibly if many such accidents happened, prudent men might change their opinions as to the advisability of using it. From this point of view, the fact that many had used a thing before is strong evidence of its safety. It must, however, be noticed that the Court seem to have overlooked the fact that the brass, though safe ordinarily, had become slippery from the very fact of this constant use. Sufficient examples have been given to illustrate the nature of the enquiry in this class of cases. There is no branch of at p. 534. the subject of torts which gives rise to so many decisions which are difficult to reconcile. It forms, perhaps, the purest example of judge-made law, and all such law is pervaded with some uncertainty. "The undefined latitude of meaning," said Erle, C.J., “in which the word 'negligence' has been used 9 C. B: N. S appears to me to have introduced the evil of uncertain law to a pernicious extent;" in another case, the same learned judge declared himself unable to understand many of the decisions cited as precedents before him. The uncertainty does not lie so much in the extent to which the term negligence is applied, that being a convenient term to express a neglect of duty not known by any other specific name; but in the fact that what one is pleased to call "common knowledge," another may term an "exception to the general rule," because a person's appreciation of common experience depends on the measure of his own experience. Much, too, must depend on the temperament of the judge. Some judges in former times have been supposed to have a leaning in favour of plaintiffs, others in favour of railway companies: but this difference of feeling is common to humanity, and the consequent uncertainty is perhaps not so great an evil as it is supposed to be, for against it must be set the integrity of the bench, and the unflinching desire to hold the balance equally between both parties. In the two foregoing classes of cases, the duty which has been broken is in the nature of a public duty: it is a duty cast on one of the community towards all who, by fulfilling certain conditions, bring themselves within the scope of it. These conditions are limited, as we have seen, to those between whom certain relations exist: where certain other relations exist the duty is not imposed. There is, however, another class of cases, involving duties which are held to have been voluntarily assumed towards certain definite persons. They are assumed by contract, but not of necessity with those towards whom the duty exists. The duty arises in consequence of the special relation between [Included in liminary classifi II. (8) of pre cation.] Relations arising to wards persons not parties to a contract. 2 M. & W. 519. 4 M. & W. 337. [post, p. 259.] Parke, B. one of the contracting parties and the person injured, which has been created by virtue of the terms of the contract, although the person injured is no party thereto. With regard to such duties, the general rule is that, the assumption of the duty being by contract, its limits are strictly confined by the terms of the contract. There have been many endeavours to extend the area of duty, where it is clear that injury has been suffered by third parties from the neglect of one of the contracting parties to perform the duty thus assumed (1). It will be better, therefore, to start with the well-known leading case of Langridge v. Levy, in which the extreme limit of liability was declared. The case was one of false representation, but the lines of the argument clearly point to it as an ordinary negligence case, aggravated, perhaps, by the misrepresentation. The father of the plaintiff purchased a gun "for his son"; the defendant warranted it safe for the use of his son: the gun was unsafe and exploded, and the plaintiff was held to have a good cause of action against the vendor. It was argued that "wherever a duty is imposed on a person by contract or otherwise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrongdoer." This the Court rejected at once. On the principle of Pasley v. Freeman, it was clear that the representation made by the vendor would, if it had been made to the son, have given him a right of action: and "if, instead of being delivered to the plaintiff immediately, the instrument had been placed in the hands of a third person, for the purpose of being delivered to and then used by the plaintiff, the like false representation being knowingly made to the intermediate person, to be communicated to the plaintiff, and the plaintiff had acted upon it, there can be no doubt but that the principle would equally apply, and the plaintiff would have had his remedy for deceit." (1) It may be advisable to notice that this law is almost entirely confined to English common law: the American Courts differ widely from our own on this subject; the respective merits of the two series of decisions have been ably discussed by Mr. Bigelow [Leading Cases, pp. 613, et seq.]. a contract are strictly limited by the terms of the con tract. The principle is, therefore, this: where a contract is made, The duties the duties which arise upon it and the remedies in connection arising out of with it are strictly limited to the terms of the contract. If nothing is said about other people, the duties only arise towards the parties to the contract: if an express mention is made as to including other parties in its operation, then, if both parties accept this inclusion, a duty arises towards those parties, and a remedy for its breach is given to them; but to no others is it given, and in no other way is the scope of the duty extended, and if others are injured by the breach of the duty, it is only damnum absque injuriâ. And the extent of the duty is not necessarily identical with the contractual duty, but is gauged by that part of the contract only which refers to the third party; it is in consequence of this reference that the relation which creates the duty arises. cases. L. R. 4 Q. B. A few well-known cases will be sufficient to illustrate this rule. In George v. Skivington a man bought some hair-wash L. R. 5 Ex: 1. for his wife, and the defendant knew the purpose for which it was bought. It turned out to be of a deleterious quality, and an action was held maintainable against the vendor for Telegraph the wife's injuries. In Playford v. United Kingdom Telegraph Co. the telegraph company delivered to the person to whom 706. the message was addressed a wrongly-worded message: and in Dickson v. Reuter's Telegram Co. the message was delivered 2 C. P. D. 62. to the wrong person entirely. In both cases the actual 3 C. P. D. 1. receiver suffered considerable damage, but in both cases it was held that the plaintiff was not entitled to recover, on the broad ground that the contract which the company had remedy. undertaken was made with the sender alone, and that the duty was consequently toward the sender alone. The second ground was that there had been a false representation made, but without any fraud or knowledge of its falsity. The relation must therefore arise by express terms: it cannot arise by implication. For example, the defendant is not liable because he must have known that the contract or its breach affected a third party. The person to whom a message is sent has no The duty cannot arise by implication. |
