be had upon any duty imposed by force of the contract, and that the recovery, if had, must be based upon a duty imposed by law under the circumstances, without reference to the contract. It may safely

be said that in no case has recovery been permitted where the action, though in form for tort, was in substance merely for a breach of the warranty in the contract of the defendant with a third person. Murch v. Railroad Corp., 29 N. H. 9, 34, 61 Am. Dec. 631; Patterson v. Colebrook, Id. 94, 102. The action has been deemed maintainable only when the act complained of could be seen to be the breach of a legal duty owed from the defendant to the person injured, without any reference to the warranties of the contract. The plaintiffs, therefore, cannot recover upon the ground that the defendants failed to do as thay agreed with the Drake & Sanborn Company. . . .

The claim presented by the declaration is not merely for furnishing an insufficient supply of steam, but it is for the negligent and unskilful management of machinery designed to protect all of the occupants of the building from the danger from which the plaintiffs suffered. It is also alleged that the exercise of ordinary care in the management of the boilers would have prevented the injury, and that the defendants were at the time in the sole and exclusive possession of the heating machinery, and were operating it. "The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law." Buch v. Manufacturing Co., 69 N. H. 257, 261, 44 Atl. 809, 811, 76 Am. St. Rep. 163. The mere possession, therefore, of the means by which harm could be averted from the plaintiffs imposed upon the defendants no legal obligation to protect them. Possession merely of the boiler house and machinery did not impose upon the defendants any legal obligations to put the heating devices in operation.

But the declaration goes further, and alleges that the defendants were in fact operating the machinery, and the negligence relied upon is the want of skill and care in what the defendants were assuming to do. Assuming to operate the machinery for the purpose for which it was designed, to protect all the occupants of the building, including the plaintiffs, the law imposes upon the defendants, by force of such assumption, the obligation to exercise ordinary care and skill in doing what they attempted to do. Edwards v. Lamb, 69 N. H. 599, 45 Atl. 480, 50 L. R. A. 160; Gill v. Middleton, 105 Mass. 477, 479, 7 Am. Rep. 548; Baird v. Daly, 57 N. Y. 236, 240, 241, 15 Am. Rep. 488. This obligation arises, not from the contract, but from the action undertaken. There is a privity, not of contract, but of duty. It may be conceded that no liability would attach if the defendants, in violation of their contract, had ceased to manage the boilers. The charge is of negligent management while still in control; the duty violated is the obligation to exercise care so long as they retained control. Upon the facts stated in the declaration, the case is as if the defendants had

assumed to hold closed a valve which, closed, prevented the flow of water into the plaintiffs' premises. Knowing that if the water escaped harm would result to others, the duty would rest upon them — at least, toward all for whose protection the device they assumed to operate was designed to exercise care in what they did. They could not carelessly abandon their voluntarily assumed duty.

In the present case, upon the facts alleged, the defendants were holding back the water by supplying heat. While under no obligation, so far as the plaintiffs were concerned, to furnish heat or hold back the water, they could not suddenly cease from their self-appointed task without care as to what might happen from such action. . . .

The ground of the defendants' liability to others is explained upon the analogy of the liability of a servant to third parties. As a general rule, a servant or agent who has contracted to perform a duty owed by his master or employer is liable only to his employer for mere failure to perform such duties, and is not liable to third parties. Wilson v. Rich, 5 N. H. 455; Hill v. Caverly, 7 N. H. 215, 26 Am. Dec. 735; Denny v. Manhattan Co., 2 Denio, 115; Id., 5 Denio, 639; Murray v. Usher, 117 N. Y. 542, 546, 547, 23 N. E. 564; Lane v. Cotton, 12 Mod. 473, 478; 1 Ch. Pl. 75; Story, Ag. §§ 308, 309; 1 Shear. & R. Neg. § 243. The principle is the same as in the cases cited as to the construction of a machine under contract with a third party. The liability cannot arise out of the engagements of the contract, but only from such duty as the law implies from the use and possession of the tools and appliances of the master. So long as the servant does nothing, his contract creates no liability to third persons, but the moment he enters upon the work the obligation of care arises. He cannot create a dangerous situation, and suddenly abandon the work without care for the danger of others. He is bound to the same obligation of care in stopping the machine as in starting it. Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437; Id., 137 Mass. 1. . . .

The defendants' knowledge of the plaintiffs' situation and the character of the probable damage to their property by water may be important upon the question whether the defendants acted with ordinary care under all the circumstances as they knew or ought to have known them. If the plaintiffs consider an amendment of the declaration as suggested advisable, application for leave to make such amendment can be made to the Superior Court.

Exception overruled. All concurred.1

The defendant was master of a ship. The health officers boarded it at the port and placed about in various parts of the ship a fumigating substance, which was poisonous to drink. The poison-pans were placed in the passengers' washbasins and drinking-cups. After the health officers left, the ship's steward failed to remove a poison-pan left in the plaintiff's utensils. On the return of the passengers to their rooms, the plaintiff's child drank of the poison and died. Is the defendant responsible? (1876, Kennedy v. Ryall, 67 N. Y. 380.)

The plaintiff's intestate fell from the rear platform of the defendant's train

when in motion, at night. The next train ran over him. The employees of the first train were not negligent as to his fall, nor those of the second train as to running over him; but the former did not stop the train to search for him, nor wire the next train to look out for him. Is the defendant responsible? (1892, Railroad Co. v. Kassen, 49 Oh. 230, 31 N. E. 282.)

The defendant owned certain fair grounds, and leased a lot to W. for a shooting-gallery. The gallery's target arrangements being unsafe, a stray bullet struck the plaintiff who was standing on the railroad platform outside a fence at the back of the gallery. Is the defendant responsible? (1902, Thornton v. Maine State Agric. Soc., 97 Me. 108, 53 Atl. 979.)

The defendant owned and managed a saloon and pool-room. M. and others, guests there, became disorderly. After a quarter of an hour of continuous brawl, during which the defendant was present and aware, M. and the others violently rushed about the room in their fight. The plaintiff was quietly playing in a game of pool. One of the fighters struck him a terrible blow in one eye, destroying it, and impairing the sight of the other eye. Is the defendant responsible? (1909, Moone v. Smith, 135 Ga. —, 65 S. E. 712.)

A railroad company, in pursuance of a contract to care for its sick employees, took charge of an employee afflicted with smallpox, and hired a nurse and watchman to care for him, through whose negligence he escaped while delirious, and communicated the contagion to the plaintiff. Is the defendant responsible? (1902, Missouri K. & T. R. Co. v. Wood, 95 Tex. 223, 66 S. W. 449, 68 id. 802.) The defendant kept a bathing-resort. The plaintiff's intestate entered and went swimming. His life was lost for lack of bathing-guards to patrol the water and rescue in case of danger. Is the defendant responsible? (1905, 'Larkin v. Saltair Beach Co., 30 Utah, 86, 83 Pac. 686.)

The plaintiff lent to the defendant his safe with combination lock. The defendant on demand returned it, but locked it with a secret combination known only to himself, so that the safe was useless to the plaintiff, and the defendant refused to disclose the combination. May the plaintiff recover damages? (1862, Neff v. Webster, 15 Wis. 311.)

The plaintiff was a miner employed by the C. J. Co., and with other workmen paid $1 a month for medical attendance, which was paid to the defendant physician through the office of the C. J. Co. The plaintiff's child fell into the fire and was burned. The plaintiff called upon the defendant for his services. The defendant refused to come, and the child died. The plaintiff, on bringing suit, was required to elect whether he would sue in tort or in contract; he elected the former; and amended his petition so as to sue as administrator of the child. May he recover? (1910, Randolph's Adm'r v. Snyder, 139 Ky.—, 129 S. W. 562.)

The plaintiff's house caught fire from a shed of the defendant's in which tramps had kindled a fire. The shed was a light wooden structure, alongside of the defendant's track and the plaintiff's house; and it could have been dragged away by a cable attached to an engine. The defendant's engine was on the track with steam up, and the plaintiff requested the defendant to drag the house away before the fire spread. The defendant declined, and the plaintiff's house then caught fire. Is the defendant responsible? (1907, Beckham v. Seaboard A. L. R. Co., 127 Ga. 550, 56 S. E. 638.)

NOTES:

"Liability for escape of smallpox patient and infection of third persons." (H. L. R., XVI, 133.)

ESSAYS:

Francis H. Bohlen, "The Basis of Affirmative Obligations in the Law of Tort." (A. L. Reg. 44 N. S., 53 O. S., 209, 273, 337.)

Francis H. Bohlen, "The Moral Duty to aid others as a Basis of Tort Liability." (A. L. Reg., 47 N. S., 56 O. S., 217, 316.)]

TITLE C: CULPABLE CAUSATION

SUB-TITLE (I): GENERAL PRINCIPLES

Topic 1. Intent and Negligence, in General

420. JOHN AUSTIN. (4th ed., Campbell; Lect. XXIV, vol. I, pp. 433, 434, 440, 474.) The bodily movements which immediately follow our desires of them are acts (properly so called). But every act is followed by consequences; and is also attended by concomitants, which are styled its circumstances. To desire the act is to will it. To expect any of its consequences is to intend those consequences. . .

The agent may not intend a consequence of his act. In other words, when the agent wills the act, he may not contemplate that given event as a certain or contingent consequence of the act which he wills. For example: My yard or garden is divided from a road by a high paling. I am shooting with a pistol at a mark chalked upon this paling. A passenger then on the road, but whom the fence intercepts from my sight, is wounded by one of the shots. For the shot pierces the paling; passes to the road; and hits the passenger. Now, when I aim at the mark, and pull the trigger, I may not intend to hurt the passenger. I may not contemplate the hurt of a passenger as a contingent consequence of the act. For though the hurt of a passenger be a probable consequence, I may not think of it, or advert to it, as a consequence. Or, though I may advert to it as a possible consequence, I may think that the fence will intercept the shot and prevent it from passing to the road. Or the road may be one which is seldom travelled, and I may think that the presence of a passenger at that place and time extremely improbable. On any of these suppositions, I am clear of intending the harm; though (as I shall show hereafter) I may be guilty of heedlessness or rashness. . . . Though he expect them not, they [the consequences of a man's acts] are rationally imputed to him, provided he would have expected them if he had thought of them and of his duty. Where he does the act without adverting to those consequences,. he is clear of intending these consequences: but he produces them by his heedlessness.

Intention, negligence, heedlessness, or rashness is an essentially component part of injury or wrong; of guilt or imputability; of breach or violation of duty or obligation. Whether the act, forbearance, or omission constitute an injury or wrong, or whether the party be placed by it in the predicament of guilt or imputability, partly depends upon his consciousness with regard to it or its consequences, at and before the time of the act, forbearance, or omission. Unless the party intended, or was negligent, heedless, or rash, the act, forbearance, or omission is not an injury or wrong.

421. OLIVER WENDELL HOLMES, JR. The Common Law. (1881, pp. 131163, in part.) It remains to be seen whether thus fraudulent, malicious, intentional, and negligent wrongs can be brought into a philosophically continuous series. . . . Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence. . ... When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable. But as has been shown, he is bound to foresee whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm

was liable to follow. Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight. . . .1

Taking knowledge, then, as the true starting-point, the next question is how to determine the circumstances necessary to be known in any given case in order to make a man liable for the consequences for his act. They must be such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm. But this is a vague test. How is it decided what those circumstances are? The answer must be by experience. . . . I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it. For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people. The ordinarily intelligent and prudent member of the community would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded. . . . The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them. . . . The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be said to have chosen to cause that harm; and on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election on his part. . . . The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.

The philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequences under the contemplated circumstances. . . . The defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.

422. JOHN W. SALMOND. Jurisprudence, or the Theory of the Law. (2d ed., 1907, § 140.) When I consciously expose another to the risk of wrongful harm, but without any desire to harm him, and harm actually ensues, it is inflicted not wilfully (since it was not intended), nor inadvertently (since it was foreseen as possible or even probable), but nevertheless negligently. . . . Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to one's conduct and its consequences.

This being so, the distinction between intention and negligence becomes clear. The wilful wrongdoer desires the harmful consequences, and therefore does the act in order that they might ensue. The negligent wrongdoer is careless (if not wholly, yet unduly) whether they ensue or not, and therefore does

1 [L. C. J. ELLENBOROUGH, in Townsend v. Wathen (1808), 9 East 277, 280. "Every man must be taken to contemplate the probable consequences of what he does."]